Trial run

Jacob Sullum
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Posted: Sep 20, 2002 12:00 AM
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 anti-aircraft guns. 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 sentence. 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.