Neither Criminal nor Soldier
by Paul Miller

On May 8, 2002, an American citizen, Jose Padilla, was arrested under a material witness warrant at O'Hare International Airport by the FBI and Swiss Special Forces. He was imprisoned in New York City's Metropolitan Correctional Center and given a court appointed lawyer, Donna Newman. He was not charged with a crime.

Instead of being charged with a crime, Padilla was labeled an 'enemy combatant' by the president, transferred to a navy brig in South Carolina and denied any further access to his lawyer. The government's action was based on a "Mobbs Declaration," a statement of accusations against a suspected "enemy combatant" (named for an obscure Pentagon official, Michael H. Mobbs). The government gave the judge in the case a more detailed, classified version of the Mobbs. Newman, however, was left out of the loop. Those documents remained classified, leaving Newman no grounds on which to challenge the accusations.

A year later, Padilla is still in custody (having been transferred to a Navy brig in South Carolina), and regardless of whether he is guilty of conspiracy in a 'dirty bomb' plot, his case brings up an often-overlooked fact: The war on terrorism is being fought with tools cobbled together from law enforcement and military operations, but we need a third set — one designed specifically to nab terrorists but still protect civil liberties.

Padilla's case raises several major legal issues. For one thing, he was arrested on a material witness warrant; since Sept. 11 these warrants have been used more frequently to detain those suspected of ties to terrorism. They are easier and faster to acquire than a regular arrest warrant, and so allow law enforcement to work more quickly. But if they are not used for people who are actually material witnesses, they are being misused.

Moreover, Padilla's imprisonment is based on accusations in the Mobbs Declaration, similar to charging a suspect. Normally, this would be followed by an arraignment, in which the initial charges are reviewed to see if there is enough evidence to indict the suspect and bring the case to trial. But this is missing in Padilla's case. There is no "enemy combatant arraignment" and no initial review of the facts. The Mobbs is unchallengeable in part because Padilla has never been indicted.

The Mobbs is also unchallengeable because it treats the accused as a captured soldier, not as a criminal. He is neither: He is an accused terrorist. The government is using the "enemy combatant" label as a trump against the normal legal process.

Finally, the government continues to deny that Padilla has a right to legal counsel or even a courtroom hearing. This continued refusal to abide by repeated rulings by the district court on this mark is unconscionable. The government is not only denying Padilla many of his normal citizenship rights; it is denying him a forum in which to petition for them. Without a legal process, the detainment of Padilla is hardly distinguishable from the arbitrary arrests we associate with less legitimate regimes.

There are, however, alternatives. A "terrorism suspect warrant" could be created to do away with the abuse of material witness warrants. The warrant would provide similar speed and flexibility for law enforcement, yet let the accused know why they are being detained. Additionally, a "terrorism suspect" label could replace "enemy combatant" — terrorism suspects could be detained for longer, interrogated harder and given more limited access to legal counsel than suspects in normal criminal cases, but some basic rights (such as presumption of innocence and access to legal counsel) could be accorded that do not apply to captured prisoners of war. And finally, a separate, closed court with special jurisdiction could be created. It would grant "terrorism suspect warrant" and indict terrorism suspects, it would be the court in which Mobbs Declarations' source documents could be fully challenged but still confidential, and it would hear the cases and judge suspects' actual guilt or innocence.

Civil liberties can justly be abridged in the face of imminent threat, but after Padilla is behind bars he is no longer a threat. A check on executive powers of imprisonment is important. One may or may not trust the current administration to use it wisely, but to blindly extend that trust to all possible future Administrations is folly. The administration appears uninterested in creating the new legal tools needed for its successors' continuing fight against terrorism. On this issue, a solid defeat for the Bush administration would be a victory for the American public.