Last week in a New York Times op-ed, former presidential candidate Wesley Clark and UCLA professor Kal Raustiala offered up a new sally in the long-running national debate over whether to treat captured terrorists as criminals or soldiers. They vote—for some compelling reasons—for treating the terrorists like criminals. It's a useful thought experiment, one I myself have engaged in on occasion. But we should probably stop kidding ourselves that anyone, outside newspapers and academia, is strictly choosing between these two systems. Criminal vs. soldier is not a dichotomy the Bush administration accepts. It never has. This president likes to have it both ways: tending to treat terror suspects as soldiers or criminals as suits his purposes. The innovation of his lawyers has been to tack back and forth between the military and criminal law systems, thus avoiding either's constraints.
President Bush has long taken the position that criminal trials don't work when it comes to punishing terror suspects. As then-Deputy Assistant Attorney General James Comey once said of the government's decision not to charge alleged "dirty bomber" Jose Padilla in criminal court: "He would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. ... He would likely have ended up a free man." But then, neither has the president been any more inclined to treat Padilla and his ilk as soldiers, who—as the Supreme Court has affirmed—would be entitled to at least basic protections under the Geneva Conventions and the laws of war. When he wants to deny someone a right to counsel, the president argues for treating him like an "unlawful enemy combatant." When he wants to interrogate a combatant in violation of the laws of war, the president insists the detainee is a criminal.
At Guantanamo and the CIA "black sites," two Bush administration inventions, both the criminal laws and the laws of war could be disregarded in about equal measure. We now know why this is so. The government initially cared about enemy captives only as sources of information to be interrogated up to (and then beyond) the legal bounds. What would be done with them afterward was not terribly important.
Which brings me to the closing arguments in the Jose Padilla trial, concluding Tuesday in a Miami court. Padilla was an American citizen, arrested without weapons in his street clothes at a Chicago airport in 2002. His case reveals in starkest relief the administration's bounce-around strategy. Padilla was shuttled out of the criminal justice system and into military detention on the eve of a court hearing to determine whether his continued detention was lawful. He was tossed back into the criminal justice system only when an airing of his claims at the Supreme Court became imminent. These moves were all part of a government effort to dodge judicial oversight. But just to be crystal clear: When Padilla was not in the criminal justice system, he was hardly treated as a prisoner of war. And when he was not in military detention, he was not being treated as a criminal defendant. The administration's trick throughout Padilla's five-year ordeal was to appear to comply with one of two legal regimes without actually utilizing either.
The government's shell game explains what has disappeared from the trial that ended Tuesday. There's no longer talk of the "dirty bombs" or even of "apartment bombs" that once justified the decision to treat him as a battlefield combatant. Also stilled are discussions of how Padilla was isolated and interrogated for three and a half years until he "confessed." Those are vestiges of the enemy combatant model, dismantled when Padilla was yanked back into criminal court.
What we do see, instead, is yet another attenuated conspiracy theory. In the government's allegations, Padilla's role in the alleged plot to maim and murder third persons in far-flung lands has been limited to participating in a handful of phone calls, in which he said little, if anything, that was incriminating, and to allegedly filling in an application form for an al-Qaida training camp. Assistant U.S. Attorney Brian Frazier mentioned al- Qaida 100 times during his closing statement Monday.
Yet in seeking a life sentence for Padilla for this alleged conspiracy, prosecutors have at no point introduced any evidence of personal involvement by Padilla in the planning or execution of such a terror plot, or even his alleged travel to Afghanistan. As was the case when the government sought to execute Zacarias Moussaoui, the theory of criminal liability may be that it is enough that Padilla wanted to be a terrorist. In that sense, we have a legal theory that may borrow from the worst and most vague aspects of the criminal and military models from which Bush has cherry-picked for so long: Jose Padilla faces a lifetime in prison for having engaged in a criminal conspiracy to be nothing so much as an "unlawful enemy combatant."