The charges:

Count 1 – Conspiracy to Murder, Kidnap, and Maim Persons in a Foreign Country as part of a conspiracy to advance violent jihad
Count 2 – Conspiracy to Provide Material Support for Terrorists
Count 3 – Material Support for Terrorists
Counts 4 and 5 are against Hassoun for unlawful possession of a weapon and making a false statement
Counts 6 through 10 are against Hassoun for multiple charges of perjury
Count 11 is against Hassoun for obstruction

2:30pm Eastern. We’ll see if any of the jurors are willing to talk, but it seems clear to me that the judge’s decision to allow FBI wiretap evidence was critical–as well as the decision to bar the defense team’s “defensive jihad” propaganda.

***
Just across the wires: “A verdict was reached Thursday in the trial of Jose Padilla and two co-defendants charged with supporting al-Qaida and other violent Islamic extremist groups overseas. The jury verdict was scheduled to be read at 2 p.m. EDT before U.S. District Judge Marcia Cooke in Miami’s downtown federal courthouse, according to an announcement from her chambers. The jury of seven men and five women deliberated for about a day and a half following a three-month trial. Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi face possible life in prison if convicted of all three charges in the case.”

Stay tuned.

AllahPundit’s not optimistic about a conviction.

Miami Herald: “The federal government has tried other ”material support” terrorism cases since 9/11 — with mixed results. But none featured a defendant quite like Padilla. The 36-year-old U.S. citizen was held as an ”enemy combatant” in a Naval brig for more than three years before the Bush administration dropped that status to avoid a confrontation before the Supreme Court over his detention. Before his transfer to Miami federal court early last year, Bush officials had accused him of being an al Qaeda recruit who plotted to carry out a radiological ‘dirty-bomb’ attack on U.S. soil. But he was never formally charged. The Miami indictment includes the allegation of being an al Qaeda soldier — but not the government’s ”dirty bomber” accusation. Still, the uproar over Padilla’s military detention could seep into jury deliberations, despite efforts by U.S. District Judge Marcia Cooke before the trial to weed out potential jurors who knew of Padilla’s history as an enemy combatant.”

***

While we wait, here’s a flashback from last January, when I published Padilla’s al Qaeda form. Here’s the first page in Arabic and English:

Via Intelwire, here’s Padilla/al-Muhahir’s arrest record. And here’s the 2005 federal indictment. And here’s the timeline leading up to his arrest and designation as an enemy combatant:

May 1988: Padilla turns 18, released from juvenile detention in Chicago on probation until age 21.
October 1991: Padilla arrested in South Florida on gun and traffic charges. He serves 10 months in prison.
Early 1993: Padilla, while employed at Taco Bell in Davie, FL, inquires about converting to Islam.
1994: Padilla begins using the name Ibrahim.
1998: Padilla leaves U.S. to study Arabic abroad.
1999: Padilla travels to Afghanistan.
2001: Padilla meets with Abu Zubaydah. Padilla and an unnamed associate receive explosives training in Pakistan.
Early 2002: Padilla meets with Khalid Shaikh Mohammed and is ordered to return to the U.S. for reasons still unclear.
May 2002: Padilla arrested on a material witness warrant related to September 11, at Chicago’s O’Hare International Airport.
June 2002:Padilla designated “enemy combatant” by the president and moved to military custody in South Carolina.

***

If you haven’t clicked over to the NYPD’s new report, “Radicalization in the West: The Homegrown Threat,” now’s a good time to do it. Many of the findings align perfectly with the Padilla case. I’m reprinting several key passages here, but make sure to read the whole thing.

NY Police Commissioner Ray Kelly’s preface:

While terrorism has been with us for centuries, the destructive power and global reach of modern terrorism is unprecedented. The entire world witnessed the attacks of September 11, 2001, but most of the attacks and attempted attacks since then have shown 9/11 to be an anomaly rather than the standard pattern for terrorism in the homeland.

If the post-September 11th world has taught us anything, it is that the tools for conducting serious terrorist attacks are becoming easier to acquire. Therefore intention becomes an increasingly important factor in the formation of terrorist cells. This study is an attempt to look at how that intention forms, hardens and leads to an attack or attempted attack using real world case studies.

While the threat from overseas remains, many of the terrorist attacks or thwarted plots against cities in Europe, Canada, Australia and the United States have been conceptualized and planned by local residents/citizens who sought to attack their country of residence. The majority of these individuals began as “unremarkable” – they had “unremarkable” jobs, had lived “unremarkable” lives and had little, if any criminal history. The recently thwarted plot by homegrown jihadists, in May 2007, against Fort Dix in New Jersey, only underscores the seriousness of this emerging threat. Understanding this trend and the radicalization process in the West that drives “unremarkable” people to become terrorists is vital for developing effective counterstrategies.

This realization has special importance for the NYPD and the City of New York. As one of the country’s iconic symbols and the target of numerous terrorist plots since the 1990’s, New York City continues to be the one of the top targets of terrorists worldwide. Consequently, the NYPD places a priority on understanding what drives and defines the radicalization process.

The aim of this report is to assist policymakers and law enforcement officials, both in Washington and throughout the country, by providing a thorough understanding of the
kind of threat we face domestically. It also seeks to contribute to the debate among intelligence and law enforcement agencies on how best to counter this emerging threat
by better understanding what constitutes the radicalization process.

Findings:

• Al-Qaeda has provided the inspiration for homegrown radicalization and terrorism; direct command and control by al-Qaeda has been the exception, rather than the rule among the case studies reviewed in this study.

• The four stages of the radicalization process, each with its distinct set of indicators and signatures, are clearly evident in each of the nearly one dozen terrorist-related case studies reviewed in this report.
o In spite of the differences in both circumstances and environment in each of the cases, there is a remarkable consistency in the behaviors and trajectory of each of the plots across all the stages.
o This consistency provides a tool for predictability.

• The transnational phenomenon of radicalization in the West is largely a function of the people and the environment in which they live. Much different from the
Israeli-Palestinian equation, the transformation of a Western-based individual to a terrorist is not triggered by oppression, suffering, revenge, or desperation.

• Rather, it is a phenomenon that occurs because the individual is looking for an identity and a cause and unfortunately, often finds them in the extremist Islam.

• There is no useful profile to assist law enforcement or intelligence to predict who will follow this trajectory of radicalization. Rather, the individuals who take this course begin as “unremarkable” from various walks of life.

• Europe’s failure to integrate the 2nd and 3rd generation of its immigrants into society, both economically and socially, has left many young Muslims torn between the secular West and their religious heritage. This inner conflict makes them especially vulnerable to extremism—the radical views, philosophy, and rhetoric that is highly advertised and becoming more and more fashionable among young Muslims in the West.

• Muslims in the U.S. are more resistant, but not immune to the radical message.
o Despite the economic opportunities in the United States, the powerful gravitational pull of individuals’ religious roots and identity sometimes supersedes the assimilating nature of American society which includes pursuit of a professional career, financial stability and material comforts.

• The jihadist ideology combines the extreme and minority interpretation [jihadi-Salafi] of Islam with an activist-like commitment or responsibility to solve global political grievances through violence. Ultimately, the jihadist envisions a world in which jihadi-Salafi Islam is dominant and is the basis of government.
o This ideology is proliferating in Western democracies at a logarithmic rate.

The Internet, certain Salafi-based NGO’s (non-governmental organizations), extremist sermons /study groups, Salafi literature, jihadi videotapes, extremist – sponsored trips to radical madrassas and militant training camps abroad have served as “extremist incubators” for young, susceptible Muslims — especially ones living in diaspora communities in the
West.

• The Internet is a driver and enabler for the process of radicalization
o In the Self-Identification phase, the Internet provides the wandering mind of the conflicted young Muslim or potential convert with direct access to
unfiltered radical and extremist ideology.
o It also serves as an anonymous virtual meeting place—a place where virtual groups of like-minded and conflicted individuals can meet, form virtual relationships and discuss and share the jihadi-Salafi message they have encountered.
o During the Indoctrination phase, when individuals adopt this virulent ideology, they begin interpreting the world from this newly-formed context. Cloaked with a veil of objectivity, the Internet allows the aspiring jihadist to view the world and global conflicts through this extremist lens, further reinforcing the objectives and political arguments of the jihadi-Salafi
agenda.
o In the Jihadization phase, when an individual commits to jihad, the Internet serves as an enabler—providing broad access to an array of information on targets, their vulnerabilities and the design of weapons.

• Individuals generally appear to begin the radicalization process on their own. Invariably, as they progress through the stages of radicalization they seek likeminded individuals. This leads to the creation of groups or clusters. These clusters appear almost essential to progressing to the Jihadization stage—the critical stage that leads to a terrorist act.
o “Group think” is one of the most powerful catalysts for leading a group to actually committing a terrorist act. It acts as a force-multiplier for radical thought while creating a competitive environment amongst the group members for being the most radical.

• Although there are many groups or clusters of individuals that are on the path of radicalization, each group needs certain archetypes to evolve from just being a “bunch of guys” to an operational terrorist cell. All eleven case studies had:
o A “spiritual sanctioner” who provides the justification for jihad—a justification that is especially essential for the suicide terrorist. In some cases the sanctioner was the nucleus around which the cluster formed.
o An “operational leader” who is essential as the group decides to conduct a terrorist act–organizing, controlling and keeping the group focused and its motivation high.

• The full radicalization of a Western individual, or groups of individuals, does not always result in the committing of a terrorist act in the West. Many fully radicalized individuals have first looked to conduct jihad by becoming mujahedeen and fighting in conflicts overseas.
o The image of the heroic, holy warrior or “mujahedeen” has been widely marketed on the Internet as well as in jihadi tapes and videos. This image continues to resonate among young, especially Muslim, men 15-35 years old—men who are most vulnerable to visions of honor, bravery and sacrifice for what is perceived as a noble cause.
o Among those individuals who travel abroad in search of jihad, some end up as mujahedeen and fight in foreign lands; some are re-directed to commit acts in the West, often in their country of origin, while others give up and return home because they can’t endure the training or have a change of heart.
o For those groups of homegrown radicalized individuals who do not seek jihad abroad, the dedication and commitment of their leader to jihad is often
the main factor in determining whether the group will commit a terrorist act or not.

• Although the 9/11 attack, with its overseas origins, is more of an exception in terms of how terrorist plots have been launched since the destruction of the Twin Towers, it has probably been the most important factor in proliferating the process of radicalization, especially in the West. More importantly, 9/11 established the current trend of committing an act in the name of global jihad as a natural culmination of full radicalization and the ultimate responsibility for the fully radicalized jihadist.
o Prior to 9/11, the entire radicalization process moved at a much slower rate. There was no direct link to jihad, other than to become a mujahedeen. Aspiring jihadists would travel to Afghanistan without any idea that they could become actual terrorists. Now, there is no longer any illusion as to what the adoption of jihadi-Salafi ideology means.
o The radicalization process is accelerating in terms of how long it takes and the individuals are continuing to get younger. Moreover, with the higher risks associated with heading down this pathway, individuals will seek to conceal their actions earlier, making intelligence and law enforcement’s job even more difficult.

• It is useful to think of the radicalization process in terms of a funnel. Entering the process does not mean one will progress through all four stages and become a terrorist. However, it also does not mean that if one doesn’t become a terrorist, he or she is no longer a threat. Individuals who have been radicalized but are not jihadists may serve as mentors and agents of influence to those who might become the terrorists of tomorrow.

• The subtle and non-criminal nature of the behaviors involved in the process of radicalization makes it difficult to identify or even monitor from a law enforcement standpoint. Taken in isolation, individual behaviors can be seen as innocuous; however, when seen as part of the continuum of the radicalization process, their significance becomes more important. Considering the sequencing of these behaviors and the need to identify those entering this process at the earliest possible stage makes intelligence the critical tool in helping to thwart an attack or even prevent the planning of future plots.

The role of prisons as jihad-brewing cesspools:

Prison—A Radicalizing Cauldron

Prisons can play a critical role in both triggering and reinforcing the radicalization process. The prison’s isolated environment, ability to create a “captive audience” atmosphere, its absence of day-to-day distractions, and its large population of disaffected young men, makes it an excellent breeding ground for radicalization.

Two of the Madrid bombers–Moroccan Jamal Ahmidan and Algerian Alleka Lamari—were either radicalized or more deeply indoctrinated in prison.

• Ahmidan, a non-observant Muslim incarcerated for petty crimes, was indoctrinated into radical Islam while in a Moroccan jail over the course of about
2 ½ years. Ahmidan was fascinated by some of the inmates who were veterans of the Afghan jihad. As these jihadists used the prisons–a haven of disaffected
men who are ripe for radicalization– for attracting future recruits, Ahmidan also became fascinated with their radical views.

• Ahmidan was released in 2003—a man now wholly transformed into a Salafi, ideologically and politically. Upon his return to Spain, Ahmidan not only prayed
the required five times a day, but spoke incessantly about jihad and his desire to fight the Americans in Iraq. Although Ahmidan stopped drinking and using drugs
following his transformation, he continued to sell drugs to non Muslims.

• Allekema Lamari, who had been arrested in 1997 for belonging to an Algerian extremist group, had already been radicalized. However, according to open source, his five year stint in prison nurtured his extremist views and actually intensified his radical mindset. During his incarceration, Lamari joined an Algerian Islamist prison group.

The radicalization process:

The NYPD report’s bottom-line conclusion:

“The challenge to intelligence and law enforcement agencies in the West in general, and the United States in particular, is how to identify, preempt and thus prevent homegrown
terrorist attacks given the non-criminal element of its indicators, the high growth rate of the process that underpins it and the increasing numbers of its citizens that are exposed
to it.”

Jurors who will soon debate the guilt or innocence of Jose Padilla and two other men on terrorism support charges cannot consider whether their actions were justified by Islamic law, a federal judge ruled Thursday.

U.S. District Judge Marcia Cooke agreed to a request from prosecutors to instruct the jurors that each of the men can be convicted even if they “may have believed that the conduct was religiously, politically or morally required, or that ultimate good would result.”

Jurors are expected to begin deliberations after closing statements Monday and Tuesday. Padilla and co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi are charged with being part of a North American support cell that provided finances, supplies and recruits to al-Qaida and other Islamic extremist groups.

A cornerstone of the defense during the nearly three-month trial was the idea that Islamic teaching provides for legitimate “defensive jihad,” which differs from terrorism because it is meant to counter aggression against Muslims and does not threaten innocent people.

But Hassoun attorney Ken Swartz said his closing argument will not focus on whether violent actions might have been justified. Swartz said he plans to emphasize that any money or supplies provided to overseas groups was meant for humanitarian assistance.

“It’s all about relief,” Swartz said. “That is not giving aid for military purposes.”

Robert Spencer sheds some light on the defensive/offensive jihad model:

Islamic law, jihad warfare may be defensive or offensive. Jihad is ordinarily fard kifaya – an obligation on the Muslim community as a whole, from which some are freed if others take it up. Jihad becomes fard ayn, or obligatory on every individual Muslim to aid in any way he can, if a Muslim land is attacked. That is what jihadists argue today – that the American presence in Iraq and Afghanistan makes jihad fard ayn, or obligatory on every individual Muslims.

But still, that is just jihad for the defense of Muslim lands. There is also offensive jihad, in line with Muhammad’s command that Muslims offer non-Muslims conversion to Islam, subjugation as inferiors under Islamic rule, or war. But in Islamic law, only the caliph is authorized to wage offensive jihad.

That’s a primary reason why jihadists want to restore the caliphate. Some would even say that they’ve already done so. In 1996 the Taliban’s Mullah Omar went to the shrine of the Respectable Cloak of Muhammad in Kandahar and stood on the roof of the shrine wrapped in the cloak. His followers proclaimed him Emir al Momineen, or leader of the believers – a title of the caliph. So far, however, only a jihadist group in Algeria has joined the Taliban in accepting Mullah Omar as caliph.

In any case, the desire to restore the caliphate ultimately highlights the expansionist, imperialist, totalitarian, globalist aims of the jihad movement, even as today it presents itself as a defensive action against Western evils. This is, I believe, a crucial point for our understanding the enemy properly, so that we can formulate the proper defensive responses. If we don’t understand what we’re up against correctly, we will not defend ourselves properly against it. And that is, unfortunately, in many ways the fix we’re in today.

A federal judge refused Tuesday to acquit Jose Padilla and two co-defendants on terrorism support charges, clearing the way for defense lawyers to begin presenting their case this week.

U.S. District Judge Marcia Cooke, ruling after a daylong hearing, said the evidence and testimony offered by the prosecuton over the past nine weeks was enough proof to let a jury decide the men’s guilt or innocence.

“That is something the jurors will have to find,” Cooke said. The trial is expected to last well into August.

Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi face possible life in prison if convicted of being part of a support cell that provided recruits, money and supplies to Islamic extremist groups around the world, including al-Qaida. Padilla, a U.S. citizen also held for 3 1/2 years without charge as an enemy combatant, is accused in the Miami case of completing a form to attend an al-Qaida training camp in Afghanistan.

Padilla was originally suspected of plotting to detonate a radioactive “dirty bomb” in the U.S. after his May 2002 arrest, but those allegations are not part of the Miami trial.

The judge gets a quote of the day award:

Defense attorneys insisted the government evidence did not prove the existence of such a conspiracy. Padilla attorney Michael Caruso pointed out that Padilla’s voice is heard on only a handful of the intercepted phone calls and is never overheard discussing any type of violence.

“There’s not an agreement by Mr. Padilla to commit a murder. If there was a plan, he was not a willing participant,” Caruso said.

Hassoun lawyer Jeanne Baker contended that her client was interested “with passion” in assisting Muslims in conflict zones such as Chechnya, Bosnia and Somalia but mainly for humanitarian reasons. She said that Hassoun has no connection to al-Qaida and that FBI intercepts in which he urges others to travel to battle areas did not necessarily mean they had violent intent.

That brought a rejoinder from the judge.

“Well, he wasn’t telling people to go there to open lemonade stands,” Cooke said.

If it looks familiar, you may recall that I posted the whole thing here back in January 2006 after reading about it in the Miami Herald and then obtaining the original document from the US Attorney’s Office in Florida. All it took was a simple phone call.

Secrets of ABC’s crack investigative team revealed!

Look at how they make it look like it was such a scoop to obtain the document:

The application–obtained by ABC News’ Law & Justice Unit–provides a window into a highly sophisticated organization with a corporate structure that resembles that of large American companies.

“It’s a membership application–just the way you or I would fill out an application for a credit card company,” said Jack Cloonan, former head of the FBI’s Osama bin Laden squad in New York and now an ABC News consultant, who reviewed the document. “They’re no different.”

The document’s authenticity was confirmed to ABC News’ Law & Justice Unit by the U.S. attorney’s office in Miami, where Padilla is being prosecuted.

How many people are there in the “ABC News’ Law & Justice Unit” and how long did it take them all to “obtain” the document–more than a year after the Miami Herald reported on it and it was posted in full here?

Next time, try this face-saving measure: Google it.

***
Previous:

January 13, 2006: Document drop – Padilla’s al Qaeda form

After the U.S. military invaded Afghanistan to oust its Taliban rulers, authorities found a locker full of applications to join al Qaeda’s holy war overseas.

Among the alleged applicants: José Padilla, the former ”enemy combatant” who once lived in Broward County.

A prosecutor produced the alleged document for the first time Thursday in Miami federal court, where Padilla pleaded not guilty to conspiracy charges that he was a recruit for a North American terrorist cell with South Florida links that aided Islamic jihad abroad.

…”It was recovered by U.S. personnel in late 2001 after the United States began bombing Afghanistan,” Justice Department lawyer Stephanie Pell said, referring to Padilla’s alleged al Qaeda application.

She added it was found among 80 to 100 other mujahadeen (holy warrior) applications found in the country, which harbored al Qaeda leader Osama bin Laden before he masterminded the Sept. 11, 2001, U.S. terrorist attacks.

Pell said Padilla’s July 24, 2000, application was authenticated by a ”cooperating government witness” convicted in an unrelated case who had once filled out the same Arabic ”mujahadeen data form.” She said Padilla’s date of birth, Oct. 18, 1970, was on his application along with his adopted Muslim name, Abu Abdullah Al Mujahir.

I obtained the five-page document (plus the five-page English translation) from the US Attorney’s Office in Florida this afternoon. Click here for the full document (.pdf file).

Here’s an excerpt of the first page in Arabic:

And here’s a bit of the English translation from a different page:

Yes, they asked him about his “hobbies.”

Padilla’s lawyer denies the terror suspect filled out the form.

WASHINGTON (Reuters) – The U.S. Supreme Court on Wednesday allowed the Bush administration to transfer “enemy combatant” Jose Padilla from U.S. military custody to federal authorities in Florida, where he faces criminal charges.

Solicitor General Paul Clement of the Justice Department last month asked for approval to transfer Padilla so he can stand trial on charges of being part of a support cell providing money and recruits for militants overseas.

J. Michael Luttig won’t be pleased.

Jose Padilla, a U.S. citizen held for three years as an enemy combatant suspected of plotting a “dirty bomb” attack in this country, has been indicted on charges that he conspired to “murder, kidnap and maim” people overseas.

A federal grand jury in Miami returned the indictment against Padilla and four others. While the charges allege Padilla was part of a U.S.- based terrorism conspiracy, they do not include the government’s earlier allegations that he planned to carry out attacks in America.

Attorney General Alberto Gonzales announced the indictment at a news conference in Washington moments ago.

Padilla, a Brooklyn-born Muslim convert, has been held as an “enemy combatant” in Defense Department custody for more than three years. The Bush administration had resisted calls to charge and try him in civilian courts.

The indictment avoids a Supreme Court showdown over how long the government could hold a U.S. citizen without charges. The high court had been asked to decide when and for how long the government can jail Americans in military prisons.

Others indicted:

Adham Amin Hassoun, Mohammed Hesham Youssef, Kifah Wael Jayyousi, and Kassem Daher. Hassoun also was indicted on eight additional charges, including perjury, obstruction of justice and illegal firearm possession.

Hassoun, a Palestinian computer programmer who moved to Florida in was arrested in June 2002 for allegedly overstaying his student visa. Prosecutors previously described him as a former associate of Padilla.

Padilla has been held at a Navy brig in South Carolina. Following the indictment, which was handed up last Thursday, President Bush sent a memo to Defense Secretary Donald Rumsfeld ordering Padilla transferred to the federal detention facility in Miami.

Andy McCarthy wonders: “HAS A TROUBLESOME ENEMY COMBATANT DETENTION BEEN MOOTED?”

I missed the press conference and would like to know more about the decision to indict. I thought this administration was supposed to be fighting the old Clinton/Kerry law enforcement approach to fighting terror.

Meanwhile, The Malcontent notices the disparity in how the Left treats indictments of alleged terrorists vs. indictments of Bush administration officials. Yup, no merry-making today.

Andy Cochran at the indispensable Counterterrorism Blog has a linked-filled post with the indictment and lots of background.

Update: Debbie Schussel has disturbing info on one of Padilla’s co-indictees.

***
Previous:
Bush victory on U.S. enemy combatants
What to do with Jose Padilla
Scott Peterson-style justice
John Kerry wants to make Osama the next O.J.
No more jury trials for terrorists

Related:
Ruth Wedgwood, The enemy within
Ruth Wedgwood, Fighting a war under its rules
Rick Moran, Is Senator Specter right?

A federal appeals court Friday sided with the Bush administration and reversed a judge’s order that the government either charge or free “dirty bomb” suspect Jose Padilla.

The three-judge panel of the 4th U.S. Circuit Court of Appeals ruled unanimously that the president has the authority to detain a U.S. citizen closely associated with al Qaida.

“The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war,” Judge Michael Luttig wrote. “We conclude that the President does possess such authority.”

A federal judge in South Carolina had ruled in March that the government cannot hold Padilla indefinitely as an “enemy combatant,” a designation President Bush gave him in 2002. The government views Padilla as a militant who planned attacks on the United States.

WaPo/Reuters coverage here. Opinion, written by Michael Luttig, is here.

***
Background:

What to do with Jose Padilla
Washington Post on the Jose Padilla case
Approved: Britain’s Prevention of Terrorism Act

In one important respect, we think Judge Floyd was too tough. He ruled that the government had no right to detain as an enemy combatant a U.S. citizen who had been arrested domestically in a civilian setting. But when Congress authorized the use of military force after Sept. 11, 2001, it gave the president the power “to use all necessary and appropriate force against those nations, organizations, or persons” responsible for the attacks and “in order to prevent any future” attacks. If the war on terror is in any meaningful sense a real war, detaining people believed to be plotting attacks on the enemy’s behalf must be part of the power to fight it. There may be times when enemy soldiers, even if U.S. citizens, must be held but cannot be tried in civilian courts.

Yep.

Related:
Approved: Britain’s prevention of Terrorism Act
What to do with Jose Padilla

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.

***

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).