In Terror Cases, Administration Sets Own Rules

When Attorney General Alberto R. Gonzales announced last week that Jose
Padilla would be transferred to the federal justice system from military
detention, he said almost nothing about the standards the administration
used in deciding whether to charge terrorism suspects like Mr. Padilla with
crimes or to hold them in military facilities as enemy combatants.

"We take each individual, each case, case by case," Mr. Gonzales said.

The upshot of that approach, underscored by the decision in Mr. Padilla's
case, is that no one outside the administration knows just how the
determination is made whether to handle a terror suspect as an enemy
combatant or as a common criminal, to hold him indefinitely without charges
in a military facility or to charge him in court.

Indeed, citing the need to combat terrorism, the administration has argued,
with varying degrees of success, that judges should have essentially no role
in reviewing its decisions. The change in Mr. Padilla's status, just days
before the government's legal papers were due in his appeal to the Supreme
Court, suggested to many legal observers that the administration wanted to
keep the court out of the case.

"The position of the executive branch," said Eric M. Freedman, a law
professor at Hofstra University who has consulted with lawyers for several
detainees, "is that it can be judge, jury and executioner."

The government says a secret and unilateral decision-making process is
necessary because of the nature of the evidence it deals with. Officials
described the approach as a practical one that weighs a mix of
often-sensitive factors.

"Much thought goes into how and why various tools are used in these often
complicated cases," Tasia Scolinos, a Justice Department spokeswoman, said
on Friday. "The important thing is for someone not to come away thinking
this whole process is arbitrary, which it is not."

Among the factors the government considers, Ms. Scolinos said, are "national
security interests, the need to gather intelligence and the best and
quickest way to obtain it, the concern about protecting intelligence sources
and methods and ongoing information gathering, the ability to use
information as evidence in a criminal proceeding, the circumstances of the
manner in which the individual was detained, the applicable criminal
charges, and classified-evidence issues."

Lawyers for people in terrorism investigations say a list of factors to be
considered cannot substitute for bright-line standards announced in advance.

The courts have given the executive branch substantial but not total
deference, often holding that the president has the authority to designate
enemy combatants but allowing those detained to challenge the factual basis
for the administration's determinations. Some courts have suggested that a
detainee's citizenship, the place he was captured and whether he was
fighting American troops should play a role in how aggressively the courts
review enemy-combatant designations.

A look at the half-dozen most prominent terrorism detentions and
prosecutions does little to illuminate the standards that have informed the
government's decisions.

One American captured on the battlefield in Afghanistan was held in the
United States as an enemy combatant. Another was prosecuted as a criminal.
One foreigner seized in the United States as a suspected terrorist is being
held as an enemy combatant without charges in a Navy brig in Charleston,
S.C. Others have been prosecuted for their crimes.

In three high-profile terrorism cases, the government obtained convictions
in federal court. Zacarias Moussaoui, a French citizen, pleaded guilty to
taking part in the conspiracy that led to the Sept. 11 attacks and faces the
death penalty. Richard C. Reid, who is British, pleaded guilty to trying to
blow up an airliner over the Atlantic with bombs in his shoes and is serving
a life term. And John Walker Lindh, the California man who pleaded guilty to
aiding the Taliban, is serving 20 years.

In three other cases, the administration designated terrorism suspects as
enemy combatants who may be detained by the military indefinitely without
charge. One, Yaser Esam Hamdi, an American citizen of Saudi descent, was
released and sent to Saudi Arabia after the Supreme Court gave him the right
to contest the government's claims. A second American, Mr. Padilla, was
transferred to the custody of the Justice Department last week.

The only remaining enemy combatant known to be detained in the United
States, Ali Saleh Kahlah al-Marri, traveled the same road as Mr. Padilla,
but in the opposite direction. "Al-Marri is precisely the flipside of
Padilla," said Lawrence S. Lustberg, one of Mr. Marri's lawyers.

After 16 months of criminal proceedings on fraud charges, and less than a
month before Mr. Marri's trial was to start in July 2003, President Bush
designated him an enemy combatant. Mr. Marri, a Qatari who had been working
on a master's degree at Bradley University in Peoria, Ill., was immediately
transferred into military custody and moved to the Navy brig in Charleston.

John Yoo, a former Justice Department official who is now a law professor at
the University of California, Berkeley, said two issues tended to determine
how the government proceeded.

"The main factors that will determine how you will be charged," Mr. Yoo
said, "are, one, how strong your link to Al Qaeda is and, two, whether you
have any actionable intelligence that will prevent an attack on the United

Jonathan M. Freiman, one of Mr. Padilla's lawyers, questioned that, saying
the administration's decisions had often seemed to be reactions to actual
and anticipated court decisions.

"The government continues to be more focused on protecting its strategies
than allowing them to be subjected to legal review," Mr. Freiman said.

In the indictment unsealed Tuesday, Mr. Padilla was not charged with some of
the most serious accusations against him, including plotting to explode a
radioactive device, because the evidence needed to prove the case had been
obtained through harsh questioning of two senior members of Al Qaeda,
current and former government officials have said. The statements might not
have been admissible in court and could have exposed classified information,
the officials said.

The Moussaoui case was also complicated by his lawyers' demands that they be
given access to potentially exculpatory evidence that the government said
had to be kept secret for reasons of national security.

The mere possibility of being named an enemy combatant, coupled with the
difficulty of divining the standards the administration uses in choosing
whom to call one, can affect the decisions of defendants in criminal plea

"In the case of John Walker Lindh," said his lawyer, James J. Brosnahan,
"there was a suggestion that even if we got an acquittal that he could be
declared an unlawful combatant, that he could be a Padilla."

Indeed, the plea agreement Mr. Lindh signed contains an unusual provision.
"For the rest of the defendant's natural life," it says, "should the
government determine that the defendant has engaged in" one of more than a
score of crimes of terrorism, "the United States may immediately invoke any
right it has at that time to capture and detain the defendant as an unlawful
enemy combatant."

Mr. Freiman said he, too, had been told that the government reserved the
right to detain Mr. Padilla again should he be acquitted.

Arguably, it may sometimes be preferable for a defendant to be held as an
enemy combatant rather than being prosecuted. Mr. Lindh's case, for
instance, is at least superficially similar to that of Mr. Hamdi, another
American captured in Afghanistan. But Mr. Hamdi is free after three years of
confinement, though he had to relinquish his American citizenship. Mr. Lindh
is in the early part of his 20-year sentence.

The government has not offered an explanation for the disparate treatment of
the cases.

Mr. Marri's detention, on the other hand, is potentially lifelong. Though he
has not been convicted of a crime, said Jonathan Hafetz, one of his lawyers,
the conditions in the Charleston brig are as bad or worse than those in the
toughest high-security prisons.

"He has been in solitary confinement for two and a half years," Mr. Hafetz
said of Mr. Marri. "He hasn't spoken to or seen his wife and five children
since he was designated an enemy combatant" in June 2003. "There's no news,
no books, nothing."

This year, the same South Carolina federal judge heard challenges from Mr.
Padilla and Mr. Marri. In July, the judge, Henry F. Floyd, ruled that the
administration was authorized to detain Mr. Marri. Four months earlier, the
judge had reached the opposite conclusion in Mr. Padilla's case.

The difference, he said, was that Mr. Padilla was an American citizen.

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va.,
reversed the ruling in the Padilla case. The administration's decision last
week to charge Mr. Padilla and try to moot his appeal of the Fourth
Circuit's decision to the Supreme Court may have been driven by its desire
to maintain a helpful precedent in the circuit where it brings many of its
terrorism cases.

"They are seeking to keep their options open," said David D. Cole, a law
professor at Georgetown, "by avoiding Supreme Court review in the Padilla
case. It lets them keep standing the Fourth Circuit decision."

In Mr. Hamdi's Supreme Court case last year, the four justices who joined
Justice Sandra Day O'Connor's controlling opinion used a narrow definition
of "enemy combatant," saying, at least for purposes of that case, that it
meant someone "carrying a weapon against American troops on a foreign

The government has proposed a much broader definition.

"The term 'enemy combatant,' " according to a Defense Department order last
year, includes anyone "part of or supporting Taliban or Al Qaeda forces or
associated forces."

In a hearing in December in a case brought by detainees imprisoned in the
naval facility in Guantánamo Bay, Cuba, a judge questioned a Justice
Department official about the limits of that definition. The official, Brian
D. Boyle, said the hostilities in question were global and might continue
for generations.

The judge, Joyce Hens Green of the Federal District Court in Washington,
asked a series of hypothetical questions about who might be detained as an
enemy combatant under the government's definition.

What about "a little old lady in Switzerland who writes checks to what she
thinks is a charitable organization that helps orphans in Afghanistan but
really is a front to finance Al Qaeda activities?" she asked.

And what about a resident of Dublin "who teaches English to the son of a
person the C.I.A. knows to be a member of Al Qaeda?"

And "what about a Wall Street Journal reporter, working in Afghanistan, who
knows the exact location of Osama bin Laden but does not reveal it to the
United States government in order to protect her source?"

Mr. Boyle said the military had the power to detain all three people as
enemy combatants.

In January, Judge Green allowed the detainees' court challenges to their
confinement to proceed. Another judge on her court reached the opposite
conclusion, and an appeal from the two decisions is pending.

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