June 11, 2002

Muhajir Implications... Joe Katzman has

Muhajir Implications...

Joe Katzman has put together a thorough run-down of the implications of the Padilla-Muhajir dirty bomb plot with regard to the al Qaeda situation.

As for the civil liberties situation, I agree with this Washington Post editorial that there is cause for concern:

The government's dilemma here is real. People bent on bringing terrorism to the United States, even U.S. citizens, must be stopped. Prevention may require acting before a suspect has actually committed a crime, or while the evidence is highly classified. It seems suicidal to argue that the government should have to release people bent on detonating dirty bombs.

Yet the government's actions in this latest case cut against basic elements of life under the rule of law. If its positions are correct, nothing would prevent the president -- even in the absence of a formal declaration of war -- from designating any American as an enemy combatant. Without proving the correctness of the charge before a court, the military could then detain that person forever. And having done so, it could prevent that detainee from hiring a lawyer to argue that the government, in fact, has it all wrong. If that's the case, nobody's constitutional rights are safe. The administration owes the country a more thoughtful balance; Congress's role -- the patriotic thing to do -- is to help find it.


There's no indication that there is any imminent danger of such broad over-reach. The case for detaining Padilla is clear: he was clearly conspiring against the US and is a dangerous man. If he doesn't fit the "enemy combatant" description, it's difficult to see how anyone could. But it doesn't seem too much to ask that the government spell out the criteria for placing a suspect in such a category and to make the decision-making process public and accountable. Americans have a right to demand assurance that such actions won't be taken arbitrarily and unaccountably against ordinary citizens.

In a way, there's a kind of symmetry between this dilemma and the question of "preemption" in the military-strategic arena. The logic of taking pre-emptive action against regimes like Iraq is unassailable, as is the logic of detaining guys like Padilla. Al Qaeda agents, whether or not they are American citizens, must be prevented from detonating bombs in American cities, just as Saddam must be denied the means to threaten us and our allies with nuclear blackmail. Such measures against such enemies, obviously, must be taken before their plans can be executed, rather than after. But "prevention" is a much broader and trickier idea than retaliation or deterrence. It relies, in a sense, on predicting the future. It's not too difficult to make a good guess as to what the guy with the dirty-bomb plans in his duffel bag is intending to do, nor is it difficult to predict Saddam's intentions. But what about the less straightforward cases? In the hands of unscrupulous leaders, or in the absence of solid and reliable intelligence, or without appropriate over-sight and accountability, an unquestioned doctrine of prevention/pre-emption could be extremely worrisome. The dilemma is not whether pre-emptive action is necessary (for it assuredly is-- in the case of rogue states with weapons of mass destruction or terrorist bombers, anything less than pre-emptive would be too late.) Rather it is how to guard against over-reach and inappropriate application of such a tricky policy criterion. It is by no means an easy question.

Posted by Dr. Frank at June 11, 2002 10:56 AM | TrackBack