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"The Enemy Within"--A Commentary by Prof. Ruth Wedgwood

(This essay originally appeared in the June 14, 2002, edition of the Wall Street Journal)

The Enemy Within
By Ruth Wedgwood, professor of law

Al Qaeda has championed asymmetric warfare. Donning civilian garb permits its suicide bombers to travel across borders in pursuit of soft targets. Ever inventive, it is now attempting to gain an advantage from the most sacred symbol of the American union -- the Constitution.

The leadership of al Qaeda has realized that the easiest way to avoid American watch lists and visa precautions is to recruit U.S. citizens for the jihad. The added strategic benefit is the special protections that Americans enjoy in a liberal democracy.

Our obvious dilemma is how to reconcile the values of the Constitution and the safety of the Republic. The matter has been put before us by the activities of an American citizen named Jose Padilla, a former Chicago gang member who converted to Islam, went to Pakistan and Afghanistan, and conferred there with al Qaeda super-operative Abu Zubaydah about exploding a radiological "dirty bomb" in the U.S.

In May, Padilla was snared at O'Hare Airport, on his return. Federal authorities sought Padilla's testimony as a material witness before a grand jury in Manhattan. He refused to cooperate and, last Sunday, was transferred to a military brig in South Carolina.

Padilla was not charged criminally in New York because of restrictive rules of evidence that govern what a trial jury can hear. Much of the information about him comes from his co-conspirator Abu Zubaydah, now in custody abroad. But Zubaydah is a hostile interlocutor, and the details of the "dirty bomb" scheme have been gleaned obliquely, in the course of extended interrogations. There is little chance, at present, that he would act as a government witness in a criminal prosecution against Padilla.

Thus the conundrum of reconciling safety and law. There is, of course, an important difference between corroborated intelligence and admissible trial evidence. The purpose of criminal justice is to punish, as well as prevent further crime. So its rules are particularly restrictive.

So far, Congress has not acted to adapt any of the rules of evidence in federal district courts to the threats of catastrophic harm posed by al Qaeda. Going to trial also means opening the sources of sensitive information to inspection -- a particular problem when a defendant chooses to represent himself, as the trial of Zacarias Moussaoui is making clear. Thus, the U.S. chose to detain Padilla as a combatant, rather than as a defendant, arguing that under the laws of war he is, in every real sense, an "enemy combatant."

In 1942, the Supreme Court ruled that the same designation -- "enemy combatant" -- applied to Nazi saboteurs who landed by submarine on American shores to blow up industrial plants. The eight men were tried before a military commission. One of them had a plausible claim of American citizenship. The Supreme Court ruled this to be irrelevant, for "citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts" qualify as "enemy belligerents."

In thinking through the new hybrid form of war waged by al Qaeda, few of us wanted to anticipate the problem of American recruits. But a president determined to prevent future attacks has to solve the problem, even if provisionally. The international law of armed conflict permits the victim of aggression to detain enemy combatants until hostilities are over. The purpose of the detention is not punitive, but rather to keep the enemy's operatives from returning to the fight.

Libertarians must ask what would restrain runaway use of such power. Habeas corpus remains available in our courts, even in this unorthodox war. Congress has not taken the extraordinary step of suspending it, and the president has not asked them to. Habeas corpus allows a court to inquire into the authority by which any American citizen is detained, even an al Qaeda recruit. The courts will have occasion to confirm whether the president enjoys a constitutional power to detain American combatants in this new kind of war waged by nonstate actors.

To be sure, the need to forestall attacks against innocent Americans with weapons of mass destruction may seem self-evident, even when criminal trial witnesses are not available. Most judges will appropriately decline to second-guess a military decision of the commander-in-chief based on reliable intelligence, especially when the stakes are so high. No writ or injunction will deter al Qaeda from carrying out acts of mass violence.

But to bolster its case, and to allay concern about error, the president might consider several options. First, the certification of a combatant should give a statement of reasons. Even if the underlying information cannot be made public in the near term, this will give a court additional reason to credit the basis of the decision.

Second, the president may wish to empower the recently created military commissions to take on the task of reviewing the basis for a "combatant" designation. The commissions' procedures admit a broad range of evidence, yet guarantee combatants the right to challenge the government's account. A battlefield judgment of combatancy has never required the criminal standard of "beyond reasonable doubt," but the case of American citizens in this unusual war makes it appropriate to think hard about an apt standard of proof.

Third, and in the alternative, the president could give the "second look" to a panel such as the Foreign Intelligence Surveillance Act court. This is a panel of judges who have gained experience in protecting intelligence, and have come to understand that the foreign affairs power deals with problems different from domestic criminal justice. In the context of wiretap applications, the FISA court has had to look at whether there is probable cause to believe that someone is acting as the agent of a foreign power. This option would probably require the consent of Congress.

Employing a structured basis for the designation of al Qaeda recruits will strengthen the confidence of the courts and the public that this awesome power will be appropriately employed in the fight against al Qaeda's terrorism. We have a government of laws, not of men. But as Justice Robert H. Jackson remarked, the Constitution is not a suicide pact. It should be possible to reconcile the problems of prevention with the careful processes of liberal government.


Ms. Wedgwood, a former federal prosecutor, is a professor of law at Yale and Johns Hopkins.