A federal judge has ordered the government to either charge or release Jose Padilla, the suspected al Qaeda operative who was apprehended at Chicago O’Hare airport two and a half years ago. The Bush administration, which will appeal the decision, has said Padilla was planning an attack with a dirty bomb as well as attacks on hotels and apartment buildings in the United States. Padilla reportedly told U.S. interrogators that he had numerous contacts with high-level al Qaeda operatives, including Khalid Sheik Mohammed, the mastermind of the September 11th attacks, and Ramzi Bin al-Shibh, the coordinator of those attacks.

U.S. District Judge Henry Floyd said Bush lacked statutory authority to detain Padilla without charges:

If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem.

In fact, Congress did pass a joint resolution that supports Padilla’s detention. S.J. 23, enacted September 18, 2001, gives the President the power to

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

That language is pretty clear. Congress gave President Bush the authority to use force against organizations that he determines carried out the September 11 attacks (i.e., al Qaeda) in order to prevent future acts of terrorism. The word “force” presumably doesn’t refer to pattycake.

As former federal prosecutor Andrew McCarthy notes in his discussion of an earlier court’s ruling on the Padilla case, Padilla easily fell within the ambit of the joint resolution:

Palpably, al Qaeda carried out the September 11 attacks, Padilla is alleged to be an al Qaeda operative who trained with the organization, and he was sent here precisely to commit “future acts of international terrorism against the United States.”

To paraphrase Judge Floyd, if the law in its current state is found by the president’s critics to be insufficient to protect civil liberties in this country, such as the violations alleged here, then these critics should prevail upon Congress to remedy the problem.

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Summing up the views of many who have criticized the detention of Padilla, Denyse Williams, executive director of the American Civil Liberties Union in South Carolina, told ABC News, “If everything you say about Jose Padilla is true, prove it.”

Yes, the Bush Administration should have to prove it, but in a military tribunal not in a civilan court.

Much of the evidence against Padilla–his own statements, the statements of other captured al Qaeda operatives, information provided by intelligence agents–either would not be admissable in a civilian court or could not be presented without compromising intelligence assets. A military tribunal, by contrast, could admit such evidence and would not be obligated to share it with Padilla or his lawyer.

Does Denyse Williams think there is no down side to waging the War on Terror in civilian courts? Look at the trial of Omar Abdul Rahman, the sheik who plotted the 1993 bombing of the World Trade Center. He used his lawyer, Lynne Stewart, to pass messages to terrorists abroad. Then there is the so-called “20th hijacker” Zacarias Moussaoui, an al Qaeda operative who has asserted the right to see classified documents and the right to interrogate captured al Qaeda combatants being detained abroad.

Finally, there is the issue of witness intimidation. Our police can’t even protect people who testify against domestic gangsters. What hope would they have of protecting someone who testifies against an al Qaeda operative?

British Prime Minister Tony Blair gets it. Too bad President Bush’s critics don’t.

For more on this topic, see:

-Ruth Wedgwood, “Fighting a War Under Its Rules”
-Ruth Wedgwood, “The Enemy Within”
-J. Andrew Kent, “Justice for Terrorists: Can we afford to try members of al Qaeda in ordinary civilian courts?” (available online in the June 2004 issue of Commentary magazine for $4.95).

Update: James Joyner replies that “Depriving a U.S. citizen of liberty without trial is rather specifically enjoined by the Bill of Rights.” That absolutist position is not one that has been embraced by the U.S. Supreme Court (see Ex parte Quirin, 1942).

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