Opinion: The 'enemy combatant'

Attorney General John Ashcroft indulged in some typically self-aggrandizing hyperbole last week when he announced that authorities had broken up a plot to detonate a radioactive bomb in the United States. Ashcroft revealed the May 8 arrest of Abdullah al-Muhajir, whom he described as "a known terrorist" involved in a scheme to build and explode a so-called "dirty bomb," with Washington, D.C., the likely target. But other White House officials, sensing that Ashcroft had created unfounded fears of a barely averted attack, quickly toned down the rhetoric. They now describe al-Muhajir, an American citizen born as Jose Padilla, as a low-level street gang member whose interest in dirty bombs had never gotten beyond the discussion stage.

Still, Padilla is being treated like the world-class terrorist Ashcroft originally made him out to be. As a way of denying him the constitutional rights that normally apply to him and every other American citizen, the government has classified him as an "enemy combatant" and placed him in indefinite detention.

Padilla has not been charged with a crime. Defense Secretary Donald Rumsfeld says the government is "not interested in trying him at this moment." Another White House official told the New York Times the government is "basically playing with time" while it decides "what it could charge him with."

The unique nature of the terrorist acts carried out and contemplated by groups such as al-Qaida requires our government to rethink the constitutional principles that govern normal American life. The attacks of Sept. 11 were not mere crimes; they were acts of war, and those responsible for them should be treated not just as criminals but as war criminals. Moreover, our government has a responsibility to act, at home as well as abroad, against future terrorist attacks before they occur. That may mean denying suspected terrorists some of the constitutional protections that normally apply to criminal suspects.

However, such extraconstitutional powers should be asserted only in the most compelling circumstances, especially if used against American citizens. Every patriotic American would support the government's efforts to foil an active plot to detonate a radiological bomb on our soil. But in this case, government officials' own words create the impression that Padilla is being denied his rights not because the case against him is so clear-cut, but because it is so uncertain. A law enforcement official acknowledged to the New York Times that while Padilla is believed to have met with al-Qaida members in Pakistan and Afghanistan, "there is no indication he had the means to (build and explode a radiological bomb) or was given the authority to do it."

The Padilla case is doubly important because it may set a precedent for future cases against American citizens. The Bush administration regulations governing military tribunals issued last November do not apply to U.S. citizens. Precedent from World War II suggests the government has the authority to revise the November regulations so that Padilla and other U.S. citizens could be tried before military tribunals, with rules of procedure that deny the accused some of the protections of civil trials. However, the government is asserting the authority to hold Padilla indefinitely without charging him and bringing him to trial. Those setting the rules for Padilla and future terrorist suspects should keep in mind that those trying to destroy our way of life would consider the evisceration of our Bill of Rights a great victory.

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