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Jose Padilla moved to the MIddle East and became a Muslim. He allegedly met with Osama bin Laden’s operations chief Abu Zubaydah, just 6 months after 9-11, and offered his services in an attempt to nuke the U.S. Because Padilla was technically an American citizen, he hoped to be better able to slip through U.S. airport security and carry out this plan.
He was arrested in May 2002 as he returned to the U.S. from Pakistan. Do we throw the book at this guy and designate him an enemy combatant? Only by an act of Congress, rules the 2nd U.S. Circuit Court of Appeals. Because he’s a U.S. citizen arrested on U.S. soil, said the Court, he has to be treated as if he’s just a criminal, not an enemy combatant. Who cares if he was working with the people who are trying to nuke us? Treat him like a shoplifter. That’s the Court’s ruling.
How can the Court ignore the facts so blatantly? The Court reiterates the mistakes of the Clinton administration, which insisted on treating terrorists as criminals to be dealt with via the court system. This left the terrrorists free to carry out 9-11.
You can’t fight an army through the Court system, any more than you can send police to fight a war. There’s a reason we don’t send our police to fight our wars. It’s because their training is inappropriate to the situation. Police are trained to save lives and even to risk their own to protect the lives and property of others. When applied to criminals, this shows our greatness as a country. But use those techniques on the battlefield, and you get clobbered.
Using the Court system against terrorists—in this case a guy who appears to have been trying to nuke us—can hobble us. The Court system is too slow. Cases can drag on for years.
And requiring an Act of Congress to try a terrorist? Congress is purposely constructed to be slow to decide things. It takes forever to get Congress off the dime.
To conclude, the 2nd U.S. Circuit Court of Appeals has reiterated a key mistake of the Clinton administration, and has handed the terrorists a victory in this case.
Update: Eugene Volokh expects the decision to be reversed.
