Citizenship doesn't matter

06/13/2002

By Victoria Toensing 

Detonating a dirty bomb in downtown Washington, D.C., would not be a crime or even an act of war. Like the Sept. 11 attacks, it would be an illegal act of war. As such, we must get used to the fact that our criminal justice system is not the place to fight an enemy who threatens to kill us.

From a constitutional view, the issue is straightforward. The "enemy combatants" who commit or plot illegal acts of war do not have to be read their Miranda rights or charged with an offense and tried speedily. Instead, like the German and Japanese soldiers our forces captured on the battlefield during World War II, they can be held until the end of the conflict.

That some of these enemy combatants — such as Abdullah Al Muhajir — are American citizens makes not the slightest difference.

The U.S. Supreme Court spoke clearly on this issue 60 years ago, when it affirmed the status and convictions of eight saboteurs who had entered the United States surreptitiously on a mission to bomb targets in support of Nazi Germany. All eight were tried and convicted as "enemy belligerents" by a military commission. Two were U.S. citizens.

The legal issue resolved, the decision becomes one of policy. The policy in this new war in which the enemy attacks civilians in our cities is that prevention trumps punishment. In practice, that policy requires our government to do all it can to learn what people such as Al Muhajir know about plots to commit additional acts of mass murder.

Understand this: If we take Al Muhajir into our civil-court system by bringing criminal charges, we will not be able to question him.

Instead, his attorney will insist on his Fifth Amendment "right to remain silent." In fact, aggressive defense attorneys will end up turning the tables. John Walker Lindh's attorneys have shut him up and successfully argued to the trial court that our intelligence officers be forced to give them information. If the government refuses, the defense will argue that the court must drop the charges.

So here's the choice: Put enemy combatants such as Al Muhajir in a process — long ago approved by the Supreme Court — that gives us a possibility to learn of future terrorist attacks. Or put him in the criminal justice system, knowing we will not be able to question him and he might be set free to plot again.

Is this really such a hard call?

Victoria Toensing, a former Justice Department official who created the Terrorism Section, is a senior fellow of the Foundation for the Defense of Democracies.