The federal government recently charged six men from Lackawanna,
N.Y., with providing material support to Al Qaeda by undergoing training at
one of the network's camps in Afghanistan. There, according to prosecutors,
they received indoctrination in terrorism, a pep talk from Osama bin Laden,
and instruction in the use of assault rifles, handguns, artillery and
The authorities say the men, U.S. citizens of Yemeni descent,
returned to the United States as a "sleeper cell," awaiting orders to
attack. But despite their alleged commitment to violence against Americans,
they are not to be confused with the "enemy combatants" whom the Bush
administration says it can keep in military custody indefinitely without
charge or legal representation.
To the contrary, the six accused terrorists were promptly
arraigned and given a bail hearing, at which they were all represented by
attorneys. Barring a plea agreement, they will eventually go to trial, where
the government will have to prove its case beyond a reasonable doubt. If it
does, they could receive sentences of up to 15 years.
Jose Padilla could be imprisoned just as long or even longer --
in his case without a trial. When the FBI arrested Padilla last May, it said
he had met repeatedly with leaders of Al Qaeda, undergone training in the
use of explosives, and studied the mechanics of "dirty bombs."
Like the Lackawanna Six, Padilla is a U.S. citizen with alleged
ties to Al Qaeda but no specific plans to carry out an attack. Unlike them,
he was classified as an enemy combatant with no right to due process. He is
being held incommunicado at a Navy brig in Charleston, S.C.
If anybody qualifies as an enemy combatant, you'd think someone
who actually took up arms against U.S. forces would. Yet John Walker Lindh,
captured last fall while fighting with the Taliban in Afghanistan, was
charged in federal court. The California native was scheduled for trial
until his July 15 plea agreement, under which he received a 20-year
Like Lindh, Yasser Hamdi is a U.S. citizen captured while
fighting in Afghanistan. Yet he has been placed in the same legal limbo as
Jose Padilla, held by the Defense Department without charge or access to a
lawyer. The government says he has no right to challenge his detention
because President Bush's finding that he is an enemy combatant cannot be
reviewed by the courts.
Unlike Lindh and Hamdi, Zacarias Moussaoui is a French citizen
of Moroccan descent. He is accused of being "the 20th hijacker," prevented
from participating in the Sept. 11 attacks only because he was in custody at
the time. He is scheduled to be tried in federal court early next year.
Similarly, Richard C. Reid, accused of trying to set off a bomb
concealed in his shoe on an American Airlines flight from Paris to Miami
last December, is a British citizen. Yet he is being held in civilian
custody and is scheduled to be tried in federal court this fall.
No wonder the Bush administration insists that its decisions
about how to deal with suspected terrorists cannot be second-guessed by
judges. If there is any legal logic to the government's determination of
which accused terrorists deserve due process and which do not, it can be
discerned only by minds keener than mine.
Not only is there no apparent rhyme or reason to the treatment
of these cases; there does not even seem to be a trend over time. Some legal
scholars who defend the administration had predicted that it would
increasingly avoid civilian courts as the war on terrorism progressed. That
hypothesis was refuted by the decision to charge and try the men from
Lackawanna rather than simply locking them up in a brig.
Meanwhile, the military tribunals that President Bush authorized
last fall have yet to be used. The administration said U.S. citizens would
not be subject to the tribunals, which have looser rules of evidence and do
not allow appeals to civilian courts. That sounded like a concession to
critics, until it turned out that the alternative to trial by military
tribunal could be no trial at all.
The standard the government is applying seems to be something
like this: When you've got enough evidence, prosecute. When you don't, hand
the suspect over to the Pentagon.
So perhaps the administration is following a rule after all. It
just isn't the rule of law.