The Rule of Law and the War on Terror
By RUTH WEDGWOOD

WASHINGTON - In the ongoing war with Al Qaeda, America's civic ideals should not frustrate an effective defense.What is the government to do, for example, when it knows of catastrophic threats or dangers to Americans through intelligence sources, yet is unable to prove its case in a criminal trial against those planning such attacks?

Consider the case of Jose Padilla, a former Chicago gang member who the government says was working for Al Qaeda in a radioactive bomb plot. The government's main informants about Mr. Padilla are still sequestered abroad. Without these senior Qaeda members available to appear in court, Mr. Padilla cannot be charged with a crime. So shortly after returning to America from abroad in May 2002, he was designated an "enemy combatant" and taken into government custody. Last week a federal appeals court ordered him released within 30 days.

According to government accounts, Mr. Padilla moved abroad in 1998, traveling to Egypt, Pakistan, Saudi Arabia and Afghanistan. He wasn't traveling to see the wonders of the world. In 2001, the government says, Mr. Padilla met in Afghanistan with Abu Zubaydah, a senior Qaeda planner. Mr. Padilla offered to detonate a radioactive bomb in an American city, and Mr. Zubaydah sent him to Pakistan to learn about making bombs.

In 2002, according to a government affidavit filed in open court, Mr. Padilla discussed how to attack the United States in terrorist operations with other operatives of Al Qaeda in Pakistan, again with Abu Zubaydah's approval. Plans included a "dirty bomb" attack and bombings of American hotels and train stations.

All of these schemes might seem beyond the capacity of a street gang graduate. But one of Al Qaeda's hallmarks has been attracting and teaching local jihadists, marrying Al Qaeda's perverse set of skills to the moral naïveté of a young recruit.

Mr. Padilla was told to return to the United States to carry out reconnaissance, the government says, or to conduct attacks on American sites. On May 8, 2002, he flew from Pakistan to Switzerland, and then to Chicago. Meanwhile, in March 2002, Abu Zubaydah was taken into custody by intelligence agents in Pakistan, and may have spilled the beans on Mr. Padilla's involvement.

The government faced an extraordinary dilemma upon Mr. Padilla's return to the United States. Federal rules of evidence do not permit the consideration of intelligence reports as proof for criminal convictions, no matter how reliable the informant. And any effort to hold Mr. Padilla as a grand jury witness was bound to be temporary, since he could not be forced to testify without immunity.

Hence, President Bush invoked the wartime power delegated by Congress. In response to 9/11, Congress's joint resolution, dated Sept. 18, 2001, authorized the president to use "all necessary and appropriate force" against "those organizations or persons he determines planned, authorized, committed or aided the terrorist attacks on Sept. 11, 2001" in order to "prevent any future acts of international terrorism against the United States" (emphasis added).

This Congressional action, together with the president's constitutional responsibility as commander in chief to protect the United States against attacks, authorized the American military campaign against the Taliban and Qaeda members around the world. Congress surely intended that Qaeda operatives who are planning direct attacks against American targets should also be restrained, at least when no other legal method is available. Mr. Padilla was caught in hot pursuit returning from Qaeda strongholds in Afghanistan and Pakistan.

In a split decision, a three-judge panel of the United States Court of Appeals for the Second Circuit has now concluded otherwise. Congress apparently meant no such thing. Though a lower court judge upheld the president's power to intercept incipient attacks, subject to suitable habeas corpus review, the appeals panel has supposed that Congress provided no means to stop Al Qaeda operatives like Mr. Padilla from entering the United States to carry out attacks — except by means of a criminal prosecution. An operative of Al Qaeda must be caught carrying "weapons or explosives," the judges said, in order to be seen as "actively engaged in armed conflict against the United States."

This sanguine view overlooks the Eichmann-like division of labor common in Qaeda operations. Target-spotting missions and trips to acquire munitions are part of armed conflict. And the government says Jose Padilla volunteered to carry out the stateside attacks directly.

The appellate court supposes, without any basis in the record, that there was no "imminent danger" of attack, because a grand jury warrant kept Mr. Padilla at a Manhattan correctional center for four weeks. But what the court did not say is that had Mr. Padilla been let go after the warrant expired, he would have been free to continue his martial tasks.

The judges appropriately considered a little-known but important guarantee called the "Non-Detention Act" — passed in 1971. It says that "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress." The puzzle is why the judges are so cocksure that Congress's nearly unanimous vote to go to war against Al Qaeda doesn't qualify as an authorizing act of Congress.

Of course, it would be preferable to know everything that is important in life by standards of "beyond a reasonable doubt." But imagine if the intelligence dots had been replete and connected on Sept. 10, 2001. What if we knew, from out-of-court sources, the names of Qaeda operatives who were planning to hijack the jet-fueled airplanes for attacks on the World Trade Center and the Pentagon?

Even then, we would likely have lacked admissible criminal proof. By the logic of last week's decision, the president could not have held the hijackers as combatants — even after they had entered the United States, even with habeas corpus review of the president's decision, until the moment they appeared at Logan Airport with box cutters.

Perhaps, unconsciously, we think the war is over. The Al Qaeda network's recent bombings in Kenya and Turkey argue the opposite. Osama bin Laden's "spider hole" has not yet been found. The muttered warnings of his deputy, Ayman al-Zawahiri, were broadcast last week, just before the government's heightened terror alert: "We are still chasing the Americans and their allies everywhere, including their homeland."

One would prefer to think this was bluster. But the training camps of Osama bin Laden created a dangerous and far-flung network that criminal law alone may not suffice to vanquish.

Ruth Wedgwood, a former federal prosecutor in the Southern District of New York, is professor of international law and diplomacy at Johns Hopkins University.