The New York Times Magazine
December 15, 2002
Should an American who is suspected of having links to Al Qaeda have the right to a lawyer and the right to not answer questions about coming attacks? The U.S. government has been holding two Americans incommunicado at military prisons. They have not been permitted contact with lawyers, family or friends. The Defense Department describes these men as “enemy combatants.”
Bush administration officials argue that some suspects who may have information about new terrorist plots should not be given the right to remain silent. After all, this silence could cost lives. That’s why, the argument goes, military interrogators must be allowed to question suspects at length, using strategies of persuasion that might not win applause from defense lawyers. The government also says it needs the unilateral power to detain some suspects indefinitely because national security would be jeopardized if a judge or jury chose to release a potential terrorist. The government’s rationale is simple and direct: in times of war, exceptional measures are necessary to protect the homeland.
Jose Padilla was named an “enemy combatant” in June; he was arrested in a Chicago airport after an overseas sojourn that supposedly included visits to terrorist camps in Afghanistan and meetings with Al Qaeda leaders. The government says he was planning to detonate a radiological bomb in America. Instead of being charged with a crime, Padilla was transferred to a Navy brig in South Carolina, where he is being questioned by military interrogators and has been forbidden contact with outsiders. A federal judge ruled on Dec. 4 that Padilla should be allowed to talk with a lawyer, but the decision may very well be appealed as the legal maneuvering continues.
Yasser Esam Hamdi, an American-born Saudi captured in Afghanistan last year, has also received the enemy-combatant designation. He is being detained indefinitely at a Navy brig in Virginia.
Not all terrorism suspects are treated this way. The six Yemeni-Americans from Lackawanna, N.Y., who were arrested in September, for example, enjoy full constitutional rights. “The president looks at the facts of each situation,” says Monica Goodling, a Justice Department spokeswoman. “The best way of dealing with one individual may be dealing with the criminal laws. For example, in other cases the individual may possess intelligence that can end the war more quickly, and in that case, the better treatment may be to detain them using military authority.”
The “enemy combatant” concept is a slippery one. To some, the government’s reasoning leans toward a legal version of creative accounting. Then again, even international human rights law is flexible in wartime. Although the Constitution is clear about fundamental rights, the president’s authority as commander in chief, particularly in times of emergency, is elastic.
Critics say the elimination of due process is unconstitutional and will lead to the jailing of innocent people. Padilla’s lawyer, Donna Newman, who is unable to communicate with her client, argues that the government’s evidence appears weak, though of course she doesn’t know much about the evidence, because much of it is classified. The government says the release of this classified information could jeopardize its intelligence-gathering activities.
“The average American has absolutely nothing to fear,” Goodling says. “Most Americans have no interest in aiding or abetting foreign terrorists. As a result, the average American is not going to be subject to this authority.” In other words: Trust us.
