How Long Can We Detain the Alleged "Dirty Bomber?"

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Attorney General John Ashcroft defends the detention of Jose Padilla

The arrest of accused "dirty bomber" Jose Padilla, a.k.a. Abdullah al-Mujahir, has raised two important questions about the future of the war on terror. First, it has illuminated the specter of the "insider" terrorist — someone who by virtue of his U.S. citizenship can move freely across the United States, plotting terrorist acts without ever once raising a red flag, raising the possibility that that detection is about to get a lot more difficult. Second, Padilla's arrest and subsequent detention sparked considerable concern — as well as a vocal debate — over the fate of civil liberties in a time of war, raising once again one of the fundamental questions of the post 9/11 world: How do you keep the country safe and still protect the Constitution?

Padilla's lawyer, Donna Newman, questions the government's commitment to that latter requirement — and there are others who share her doubts, including lawmakers like Senators John McCain and Arlen Specter, who urged Congress to convene congressional hearings.

The story so far

Padilla was arrested in May at Chicago's O'Hare airport after disembarking from his plane from Pakistan and taken to a prison in New York City. Sunday, he was handed over to the military and labeled an "enemy combatant" — someone, in the Pentagon's words, "who does not adhere to the rules of war; someone without weapons, without ties to recognized governments." An enemy combatant may also be detained by a government for any length of time without ever being charged with a crime. This means Padilla, who is currently in military custody in South Carolina, is in a sort of legal limbo, where not even his lawyer knows exactly what his rights are. He has not yet been charged with a crime, and the government is in no hurry to do so; Defense Secretary Donald Rumsfeld says they are more interested in what Padilla knows about al-Qaeda than in prosecuting him.

This utter ambiguity distinguishes Padilla's circumstances from those of John Walker Lindh and Zacarias Moussaoui. Walker Lindh, also a U.S. citizen, was captured while fighting alongside Taliban forces in Afghanistan, in an obvious "war zone." Since his detention last fall, he has been transferred over from the military court system to the federal system; a step that will lend a new degree of transparency to Lindh's legal proceedings. Moussaoui, the suspected "20th hijacker," will also be tried in federal court, although he is not a U.S. citizen.

How long can you detain a U.S. citizen?

But as someone who was arrested well outside a "war zone" (as defined by traditional rules of war, anyway) should Padilla be treated as a suspected criminal? Douglas Cassel, director of the Center for International Human Rights at Northwestern University Law School, thinks so. "Charges should be brought, a trial should be scheduled, and he should be allowed to see a lawyer," Cassel says. "They're maintaining they can hold him for the duration of the war on terror — which could easily be years, or even decades — without ever charging him with a crime."

Attorney General John Ashcroft, who announced Padilla's arrest Monday to coincide with the detainee's transfer from civilian to military custody, says Padilla trained with al-Qaeda operatives in Pakistan, and that the government has "very significant information" linking Padilla to "al-Qaeda and very serious terrorist plots." According to Bush administration officials, at the time of his arrest Padilla was in possession of plans to construct and detonate a "dirty bomb."

So how will the U.S. deal with Padilla? What are the legal options? Monday Deputy Defense Secretary Paul Wolfowitz told reporters the government would consider trying Padilla in the federal system, but that assessment has not been seconded from higher up the chain of command. Alternately, Padilla could be tried by a military tribunal. But that option would require some backtracking at the White House. When the Bush administration established guidelines for military tribunals last November, they stipulated that no American citizen would be subject to trial by that method.