Mystery Charges

In June of 1942, Nazi submarines landed eight soldiers armed with explosives on American soil. They were under orders from the German High Command to infiltrate American society and commit acts of sabotage and terrorism, such as destroying power plants, factories, bridges, and Jewish-owned department stores.

The would-be saboteurs buried their uniforms and proceeded to New York and Chicago, but their plan came to an abrupt end when one of the men turned himself in to the FBI. The other Nazis were quickly rounded up, tried, and convicted by a military tribunal. The Supreme Court upheld this procedure, and six of the men were executed. The two others were imprisoned, then deported to Germany after the war.

Almost exactly sixty years later, Jose Padillaalso known as Abdullah al Muhajirlanded at O'Hare Airport in Chicago. His alleged goal was similar to that of the Nazis, though perhaps more ambitious. The Bush administration claims that Padilla is an Al Qaeda operative who was plotting to build and explode a "dirty bomb" that would use conventional explosives to disperse radioactive material inside the United States.

But Padilla didn't have much better luck than his Nazi predecessors. FBI agents arrested Padilla as soon as he landed in Chicago on May 8. He's been in federal custody ever since. On Monday, the government announced that they were classifying Padilla as an "enemy combatant" and transferring him to military custody.

If the allegations against Padilla are correct, then the Bush administration deserves credit for his capture. But so far, the government's handling of the case is worrisome, to say the least. Padilla hasn't been charged with a crime, and the government apparently has no plans to give him a trial or any other kind of hearing before a judge.

Instead, the administration seems to be taking the position that the president can unilaterally classify someone as an enemy combatant, on the basis of secret evidence. How long can an "enemy combatant" be detained? According to Deputy Defense Secretary Paul Wolfowitz, "until the end of the conflict." The problem with that is that the war against terrorism isn't a conventional war, and won't have a definitive end point. So what the government is saying is that they can lock Padilla up forever, without ever producing evidence to support their actions.

Before September 11, such a move would have been jaw-dropping. Now, however, Attorney General John Ashcroft is claiming that indefinite detention of suspected terrorists without a trialor any other judicial review of the allegations against themis justified by "clear Supreme Court precedent." Presumably, he's referring to the case of the Nazi saboteurs. If so, then Ashcroft is dead wrong.

The Nazi saboteurs were treated harshly but fairly. Although they didn't get all the benefits of the American criminal justice systemsuch as indictment by a grand jury and trial by a jurythey did get a substantial degree of due process. They had a trial at which they were entitled to present evidence. They were represented by highly skilled court-appointed counsel. And ultimately, they had an opportunity to have their case reviewed by the federal courts, including the Supreme Court.

Moreover, there was never really any question that the accused men were in fact "enemy combatants"Nazi soldiers who had been ordered to commit acts of sabotage in the United States. Among other things, the government had signed confessions from all eight men, as well as the explosives that they buried shortly after landing.

Padilla, by contrast, seems to have been presumed guilty by executive fiat. It's not clear what evidence the government has to support the notion that he is an "enemy combatant." For that matter, high-ranking government officials seem to be a little hazy about what exactly Padilla has done or was planning to do. Wolfowitz told a television interviewer on Tuesday that Padilla "was in the very early stages of planning. I don't think there was actually a plot beyond some fairly loose talk and his coming here obviously to plan further deeds."

Padilla's situation is complicated by the fact that Al Qaeda is not Nazi Germany. Osama bin Laden and his cronies may be as evil as Hitler, but they don't control a state or even aspire to control one. Al Qaeda is a terrorist network that operates in many different countries, and it doesn't have an army in the traditional sense. Unlike the Nazi saboteurs, who buried their uniforms when they came ashore, Al Qaeda's terrorist operatives aren't soldiers. They don't have any uniforms to discard. That means that it is much more difficult to tell whether Padilla is really an "enemy combatant," as the government claims, or an innocent civilian who's the victim of a colossal misunderstanding. The only way to make that determination is for the government to present its evidence to a neutral factfinder, and to give Padilla a fair opportunity to respond.

The Bush administration may well have legitimate concerns about charging Padilla with a crime and putting him on trial in a public forum. A trial could conceivably force the government to release sensitive intelligence information that could jeopardize efforts to uncover future plots against the United States. And in any case, preventing another terrorist attack is more important than punishing any single wrongdoer.

But that doesn't justify indefinite detentions simply on the basis of the attorney general and defense secretary's say-so. The Supreme Court has approved the concept of preventive detention for mobsters, sexual predators, and other persons who would likely cause harm to the community if allowed to remain at large. But such proceedings generally require, at a minimum, that the detainee be afforded counsel and the right to present evidence, and that an unbiased judge find a clear and convincing justification for the detention.

There is no reason why the government couldn't employ similar procedures in Padilla's case. If the government is relying on evidence that can't be made public for national security reasons, it could even ask to the relevant portions of the case filed under seal.

The government says it is confident that Padilla is a terrorist. If so, the Bush administration has failed a deadly plot against the United States, saving hundreds, maybe thousands, of lives. But as long as Padilla remains in military custody without even a semblance of due process, the American public can never know for certain.