Jewish World Review June 21, 2002 /11 Tamuz 5762
Punishment first, then the crime?
Life in the war against terrorism is imitating art. Steven Spielberg's new movie "Minority Report" features a government that snatches and imprisons people before they commit crimes that predictors expect them to commit, whether the suspect has thought about committing the crime or not.
This is supposed to be fiction. In the case of Jose Padilla, real life is catching up.
Padilla, who now calls himself Abdullah al Muhajir, is locked up in South Carolina without access to his lawyer or any prospect of formal charges against him. He is a Brooklyn-born Muslim convert and former Chicago street gang thug with a long criminal record.
But the government is detaining him not for what he has done but for what they say he might do.
Attorney General John Ashcroft says Padilla was part of an al-Qaida plot to detonate a radioactive "dirty bomb" in the United States, although Deputy Defense Secretary Paul Wolfowitz said the next day, "I don't think there was actually a plot beyond some fairly loose talk."
Nevertheless, if the government is right, we Americans should feel grateful and relieved, even if we can take little comfort in our government's curious reluctance to back up its own case in court. Someone needs to ask why it is necessary to rush Padilla to his non-judgment.
Why, for example, after tailing Padilla all the way from Zurich, did the FBI arrest him as soon as his flight landed at Chicago's O'Hare International Airport? Why did they not continue to follow him, as some crime experts suggest, and gather more evidence about him and whomever he was about to contact?
One possible answer: The FBI might be so unsure of its own abilities that it was afraid its agents might lose this valuable suspect. That's what The New York Times reported on June 13, quoting unnamed "FBI officials."
After long deliberations, including consultations with FBI Director Robert Mueller, investigators decided "to pop him right as he got off the plane" because "they couldn't take a chance" that Padilla had not already acquired a radiological weapon or might try a terrorist action, according to the Times. Feel safer yet?
And why is Padilla being held indefinitely without charges while other alleged combatants like John Walker Lindh, the so-called "American Taliban," and Zacarias Moussaoui, the so-called "20th hijacker," are tried in federal court? Is Padilla that much more dangerous? Or is the government merely holding him because they don't have enough evidence to hold up in court?
Failure to ask such questions and hold government accountable in such cases endangers all of our rights and encourages shoddy police work. The Bush administration, like others before it, tries relentlessly to dodge such questions in the name of national security.
But the government successfully prosecuted the first World Trade Center bombers in the mid-1990s under the Classified Information Procedures Act, which was set up specifically to protect national security secrets in open trials. Less successful, we might recall, was its prosecution under CIPA of Wen Ho Lee. The injustices committed against Lee should remind us of how important it is to protect individual rights against possible government abuse, even in times of a national security crisis.
Yes, I know we are at war. The administration loves to justify its aggressive detention campaign with Supreme Court Justice Arthur Goldberg's famous quote, "The Constitution is not a suicide pact." I agree with that. But while the Constitution is not a suicide pact, it is not blank check, either.
When the executive branch targets and detains its own citizens without access to a lawyer, it is up to Congress and the courts to provide oversight and safeguards to make sure those powers are not abused.
Wartime does not require us to abandon the rules that define America as a civilized society. On the contrary, our ability to preserve, protect and work within those rules is the very definition of our virtue as we pursue enemies whom President Bush calls "the evildoers."
Tom Cruise's character in "Minority Report" is in charge of "pre-crime" arrests until he gets framed for a crime he has no intention of committing. Then the hunter becomes the hunted, in Alfred Hitchcock fashion. There are no safeguards built into the system in which Cruise's character lives. Life has not imitated that fiction. Not yet.
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