How to hide the dirty bomber from the U.S. Constitution.

The law, lawyers, and the court.
June 11 2002 6:46 PM

Hiding the Dirty Bomber From the U.S. Constitution

The Bush administration establishes a Department of Precrime.

Illustration by Robert Neubecker

Unless you've been held incommunicado by U.S. military forces and missed the previews running every five minutes on television, you probably know that Steven Spielberg's soon-to-be-released Minority Report is about a futurist police agency called "Precrime." The agency is responsible for identifying and arresting murderers before they commit their crimes. It turns the notion of criminal prosecution on its head: The state isn't in the depressing business of amassing evidence about past murders; it merely prevents future ones. And it works! Due to the efforts of Precrime, felony rates in New York have dropped 99.8 percent.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

For want of a Federal Department of Precrime, John Ashcroft is seeking ways to stop terrorists who haven't necessarily done anything bad enough to warrant a criminal conviction in civilian courts, but who'd jump at the chance to do worse things if free. Casting about for some legal system adequate to handle the problem, federal authorities have toyed with military tribunals and indefinite detentions of "material witnesses" and have now resorted to unconstitutional military detention. This week's decision to move alleged "dirty" bomber Abdullah al-Muhajir out of the criminal justice system and into military custody shows how desperately the authorities need some new legal mechanism for incapacitating terrorists. It's not enough to hold them pending criminal trials because we don't always have sufficient evidence to convict them. But the Constitution does not permit what Deputy Defense Secretary Paul Wolfowitz announced yesterday to be the government's new primary interest: deterring future attacks and interrogating those with knowledge of such attacks. 


It's hard to discern a pattern in the choices made by the government in detaining suspected al-Qaida members. In some cases, such as yesterday's, American citizens are treated worse than noncitizens. In other cases, suspects posing only minimal risks to U.S. security—such as Yasser Esam Hamdi, the alleged Taliban fighter who was recently moved stateside from Guantanamo Bay—are afforded even fewer legal rights than suspects attempting massive attacks, such as alleged shoe bomber Richard Reid. (Click here for a chart of how the United States is treating different suspected terrorists.)

Wolfowitz yesterday highlighted the problem with treating al-Muhajir as a conventional criminal defendant. The alleged conspiracy was in such early stages as to be almost ephemeral. "There was not an actual plan," Wolfowitz announced. "We stopped this man in the initial planning stages." According to Robert Mueller, the plan "had not gone, as far as we know, much past the discussion stage." No plan, of course, means little admissible evidence. Which means that the case against al-Muhajir, like the case against Zacarias Moussaoui, may be comprised solely of suspicious globe-trotting and some odd money-transferring. Getting a conviction under such circumstances is possible, but it's no cakewalk. Just ask the prosecutors in the Moussaoui case how easy it is to prove a conspiracy with a fistful of circumstantial evidence and "terroristlike" behavior.

This may be why prosecutors in the al-Muhajir case hot-potatoed their suspect out of the civilian court system. Whatever the government knows of his plan, apparently it was not enough to support a criminal case against him, at least not in time for the secret criminal hearing before a civilian judge that had been scheduled for today. So authorities transferred him to military custody, where he can be held seemingly indefinitely as an "enemy combatant." And while al-Muhajir cannot be tried under the current version of President Bush's military-tribunal order because he is an American citizen, it's becoming clear that the government has less interest in trying terrorists for past crimes than in hanging on to them for a long, long time.

The prospect of indefinite military detention is alarming. For starters, al-Muhajir is an American, and by detaining him without the right of habeas corpus, the state has denied fundamental constitutional rights. The "legal precedent" cited by the government for placing him in military custody applies only when military tribunals are at issue. It's not a legal basis for indefinite military detention without the opportunity for trial. (Eugene Volokh has a good, fast rundown today on the pros and cons of military trials and detention.) In fact the reason al-Muhajir has been shunted into the military system as opposed to the civil one has nothing to do with affording him the lesser protections afforded to POWs or "enemy combatants" before military tribunals. It's about stuffing him into a secret system from which no civil court can yank him back. 

The only consistent pattern so far in our choices about where and how to detain suspected terrorists seems to be that we allow them to go to civilian trial only when we think we have enough evidence to convict them, while those with flimsier evidence are locked up indefinitely and denied access to counsel.

But even in the face of all this unconstitutional jiggery-pokery, the more alarming prospect is letting men like al-Muhajir walk.

There are constitutional alternatives still open to the government: Try him in a military court (as distinct from Bush's new military tribunals) or redraft the original executive order to allow U.S. citizens to be tried by tribunal as well. But the bottom line appears to be that the Bush administration really isn't all that interested in staging trials anymore, regardless of the forum or the evidentiary rules. And our criminal law system and military courts are not geared toward doing what the administration wants done: incapacitating and deterring terrorists for indefinite periods of time.

Most of us can agree that releasing people with knowledge of, or connections to, acts of terror against the United States is a national security disaster. But can we also agree that holding them in military prisons, without any means of testing the evidence against them, based on the bare assertion that they are or know terrorists is equally troubling? We need some new system to handle suspected terrorists, outside the standard criminal and military paradigms that have proven a worse fit with each successive case. We need some forward-looking system, based on the likelihood of future danger.

We need a Bureau of Precrime.



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