Time in Advance

Preventive detention for "enemy combatants"

In the new movie Minority Report, the police arrest people for crimes they are expected to commit in the future. Our own government seems to be laying the groundwork for a similar policy.

Deputy Defense Secretary Paul Wolfowitz calls Jose Padilla, a.k.a. Abdullah al Muhajir, "a very dangerous man," and perhaps he is. But by locking him up indefinitely without bringing charges, the government is setting a precedent for preventive detention of any U.S. citizen whom the president decides to put on the country's enemy list.

This maneuver makes due process disappear through misdirection and circular reasoning: If you're a terrorist, you're an "enemy combatant." Therefore, the government does not have to prove you're a terrorist.

Attorney General John Ashcroft says Padilla, a former Chicago gang member who converted to Islam, has met repeatedly with leaders of Al Qaeda, undergone training in the use of explosives, and studied the mechanics of "dirty bombs." The FBI arrested him on May 8 after he flew from Pakistan to Chicago, allegedly to research possible targets.

Yet the Justice Department never charged Padilla with a crime. After detaining him for a month as a "material witness," the government decided he was actually an "enemy combatant," so he was turned over to the Defense Department, which is now holding him at the Naval Consolidated Brig in Charleston, S.C.

According to The Washington Post, the transfer was necessary because prosecutors did not have enough evidence to indict Padilla. Now "investigators can continue seeking information from him with relatively little interference from a defense attorney."

Ah, those pesky defense attorneys. Padilla's lawyer has filed a petition for a writ of habeas corpus in federal court, asking the government to justify his detention.

Wolfowitz says the justification is simple. "Enemy combatants, whether they are American citizens or not American citizens, are subject to the same provisions of the laws of war," he told CBS. "You can hold an enemy combatant until the end of the conflict."

In support of that argument, Wolfowitz cites a 1942 case in which the U.S. Supreme Court approved the military prosecution of German saboteurs, including one U.S. citizen. In that case, however, there was an official declaration of war and an identifiable enemy that could be decisively defeated.

The "war on terrorism," by contrast, is a war without end. By Wolfowitz's reasoning, Americans identified as "enemy combatants" because of alleged links to terrorist groups can be given what amounts to a life sentence without being charged, let alone tried.

Unlike the Roosevelt administration, which swiftly tried the German saboteurs, the Bush administration has no plans to prosecute Padilla. Indeed, since President Bush's order authorizing military tribunals for accused terrorists does not apply to citizens, Padilla cannot be tried as long as he remains in the Defense Department's custody. "If it came to a point of prosecution," Wolfowitz told NBC, "then he would have to go back into the civil court."

It may never get to that point. The evidence of a terrorist conspiracy is looking less substantial every day.

"We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb,' " Ashcroft said when he revealed Padilla's arrest, citing "multiple independent and corroborating sources."

The next day, however, Wolfowitz told CBS: "I don't think there was actually a plot beyond some fairly loose talk and his coming in here obviously to plan further deeds….It's not as though this was a plan that was on the verge of being executed….He was still in the early stages."

By some accounts, Padilla might never have gotten further than that. "Officials said that the bomb plot was interrupted in its earliest phase and that Mr. Padilla, a low-level gang member with a criminal record, was an unlikely terrorist with no technical knowledge of nuclear materials who was arrested long before he represented a terrorist threat," The New York Times reported. "The officials added that it was unlikely that Al Qaeda would have ever trusted a non-Arab like Mr. Padilla with an important operation."

Perhaps it's not surprising, then, that the government chose not to prosecute Padilla. But if it's allowed to keep him imprisoned anyway, a lot will hinge on the president's ability to determine who is thinking about becoming a terrorist. And unlike the police in Minority Report, he won't have any psychics to consult.