Dirty Bummer

Why the White House should make its case against Jose Padilla, but won't

Don't you want to know whether Jose Padilla, the American citizen held as an enemy combatant from June 2002 until this week, was indeed conspiring—or even ringleading—a plot to set off a "dirty bomb" somewhere inside the United States?

I sure as hell do, and not just because a negative answer would give people like me another chance to complain that the ends aren't even living up to the means, let alone justifying them.

It's actually to the contrary. I'm begging for confirmation that the "Dirty Bomber"—who was indicted by a federal grand jury yesterday on three counts having zilch to do with making bombs or planning acts of domestic terrorism—was indeed "a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States" (as then–Attorney General John Ashcroft initially alleged), because if he was, there might finally be a half-convincing real-world argument to support the Bush Administration's expansion of Executive Branch power at the expense of our constitutional liberties.

Instead of the ever-present, ever-fictional ticking time-bomb scenario, there'd be a potentially provable multi-national bomb plot. Instead of mounting documentation of cases where water-boardees are shown to have told CIA agents what they wanted to hear to make the abuse stop, you'd have nearly 24 consecutive months of lawyer-free interrogation yielding important intelligence that may have saved lives.

If the Bush Administration presented to a persuasive argument that suspending the Fifth Amendment in this one case probably saved lives, the American people might well get on the bandwagon, and put some wind back behind the sails of expanding and extending the PATRIOT Act. That may not be my particular policy goal, but I'm desperate for at least a little moral doubt, and some raising of the argumentative bar, not to mention a reacquaintance with the feeling that the people spending my tax dollars are truly acting with my best interests in mind.

If the White House, Pentagon, and Justice Department wanted to make that case, I think America would be all ears. Unfortunately, they're doing no such thing.

Padilla's threat to our security, as stated by top government officials, has swerved from imminent to fuzzy to extensive to non-existent. Ashcroft famously interrupted a meeting in Moscow on June 10, 2002 to announce to the world via satellite that the government had "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." In that light, of course the only solution was to transform Padilla—who had been arrested a month earlier at Chicago's O'Hare International Airport on a material witness warrant—to "enemy combatant" status, and shuttle him off to a Naval brig in South Carolina. Except for that a few days later the White House backtracked, with then-deputy secretary of state Paul Wolfowitz downgrading the "unfolding terrorist plot" to "some fairly loose talk."

Padilla then went off the grid for two full years, as his faraway lawyer filed court challenges and the government interrogated him by whatever means they chose. Out of that black process—and under the shadow of a then-pending Supreme Court challenge, as well as a request for information by the Senate Judiciary Committee—came a remarkable June 1, 2004 presentation by then–Deputy Attorney General James Comey:

[Padilla is] a highly trained al Qaeda soldier who had accepted an assignment to kill hundreds of innocent men, women and children by destroying apartment buildings; an al Qaeda soldier who still hoped and planned to do even more by detonating a radiological device, a dirty bomb, in this country; an al Qaeda soldier who was trusted enough to spend hour after hour with the leaders of al Qaeda, Mohammed Atef, Abu Zubaida, Khalid Shaikh Mohammed; an al Qaeda soldier who had vital information about our enemy and its plans; and lastly an al Qaeda soldier who, as an American citizen, was free to move in, within and out of this country.

It was an impressive and detailed performance worth reading in full, and based largely on confessions squeezed out of Padilla under circumstances that may or may not have been consistent with the Geneva Conventions (Comey refused to say). The understandably less detailed response by Padilla's lawyer is worth reading, too.

According to Comey's opening statement–style presentation, Padilla was initially tasked with finding an American apartment building that used natural gas, and converting the fuel into a weapon that could take out as many as 20 apartments at once. When this first plan broke down (while Padilla was still out of the country), Padilla suggested a dirty bomb to his skeptical al Qaeda taskmasters. It was unclear precisely which plot he was working on, and how advanced it was, when he arrived in Chicago with more than $10,000 cash on May 8, 2002, but there was no doubt among federal prosecutors that he was up to evil.

Now take a look at yesterday's grand jury indictment—not a word about dirty bombs, natural gas, apartment buildings, radiological devices…none of it. What are we supposed to think?

Maybe the climbing down from imminent domestic dirty bomber to vague co-conspirator of foreign malfeasance is merely the difference between what we "know" and what we can prove. Maybe, as in the case of Idaho student Sami Al-Hussayen, John Ashcroft erred on the side of fighting jihad by any means necessary (such as immigration rules when everything else runs out).

Whatever the explanation, it's unsatisfying. Padilla is being transferred back to the U.S. justice system, a positive development that has its own legal necessities, but I want to know whether those two years in the Twilight Zone were worth it.

The Justice Department sent a report about Padilla to the Senate Judiciary Committee in June 2004; why hasn't it been declassified, with the sensitive bits redacted? Why don't we know about the precise methods used in those 24 months of interrogation, and whether they were even videotaped? If the Administration wants us to back Vice President Dick Cheney's torture exemption for the CIA, why not show us some honest-to-God proof that water-boarding and the rest of it can produce information that saves lives?

An even partial opening of the investigative files would allow Americans to judge for themselves whether this extravagant exercise of White House power was worth the cost. Polls have always shown a surprising and (to me) horrifying eagerness to "trade" liberty for security; that the Bush Administration won't feed supporting data into that maw suggests to me that the trade simply doesn't exist. Which might be the best reason of all to shine light on what has been one of the darkest recent chapters in American law enforcement.

Associate Editor Matt Welch writes from Los Angeles. His work is archived at mattwelch.com, where he also blogs.