Treatment of Defendants—Terrorism Suspects

Over the past couple of months, when we have discussed the treatment of certain terrorism suspects or so-called enemy combatants, we have noticed that some suspects are treated differently than others, and in ways that seem to suggest that there are no certain rules being followed. For example, we mentioned the curious extradition request for Wesam Delaema, here and here, who is wanted for certain crimes related to the war in Iraq. We also discussed the controversy surrounding secret CIA-run prisons across the globe, here, which raised questions about the threat posed by the detainees held at Guantanamo Bay. And we have covered Jose Padilla, here and here, whose recent indictment has certainly raised questions about why an American citizen was being held in a military brig for over three years.

This Sunday, the New York Times ran a story that seems to confirm our concerns:

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 a court.^[1]

According to the article, the Department of Justice gives “much thought” to how to classify individuals, and that the “important thing is for someone not to come away thinking this whole process is arbitrary, which it is not.”^[2] The decisive factors include:

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.^[3]

Notably absent, however, are bright-line rules and concerns about the treatment of individuals, two issues which do make the process seem arbitrary. As the article points out, of the six high-profile terrorism detentions, there has not been a single unifying standard implemented. Zacarias Moussaoui, the alleged 19th hijacker, pleaded guilty to the conspiracy that led to the September 11 attacks; Richard Reid pleaded guilty to trying to blow up a plane with explosives in his shoes; John Walker Lindh pleaded guilty to aiding the Taliban; Yaser Hamdi was held as an enemy combatant and then released and sent to Saudi Arabia; Jose Padilla was held as an enemy combatant for three years, and recently had criminal charges brought against him which were substantially unrelated to the official reasons given for his detention; and the final enemy combatant known to be detained, Al Saleh Kahlah al-Marri, was subjected to 16 months of criminal proceedings on fraud charges before President Bush labeled him an enemy combatant on the eve of his criminal trial.^[4]

Mr. al-Marri’s situation is mirrored in the plea agreement signed by Mr. Lindh, whose lawyer said that “there was a suggestion that even if we got an acquittal … he could be declared an unlawful combatant,” like Mr. Padilla.^[5] The plea agreement contains a clause that states “For the rest of the defendant’s natural life, should the government determine that the defendant has engaged in [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.”^[6]

The concern, of course, in all these scenarios in which there are no apparent concrete rules being implemented, is that people are being deprived of their liberty without due process of law in contravention of the Fifth Amendment. While we acknowledge that what the Fifth Amendment says and what the Supreme Court says the Fifth Amendment says are often two different things, we still find the treatment of these individuals troubling.

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[1] Adam Liptak, In Terror Cases, Administration Sets Own Rules, NY Times, Nov. 27, 2005, at A1, available here.
[2] Id. at A22.
[3] Id.
[4] Id.
[5] Id.
[6] Id.