A trip to the dark side

Speaking of "scared stupid," if you'd like to take a short but chilling journey into the byzantine world of "verdict first, trial after" thinking that runs our approach to civil liberties in "the war on terrorism," check out this op-ed piece in the December 23 New York Times.

The author, a former federal prosecutor, argues the Appeals Court was wrong in deciding Jose Padilla must be tried or freed. In addition to the flatly false claim that Padilla was captured "in hot pursuit returning from Qaeda strongholds in Afghanistan and Pakistan" ("Hot pursuit" would mean that the US chased him from there to Chicago, where he was arrested. No such pursuit took place.) she applies logic that I can only describe as demented to argue that in allowing for the use of force against al-Qaeda, Congress intended to authorize the president, on his own authority, to indefinitely detain anyone he thinks a threat, without counsel or appeal to the courts. (Notice as you read how "Innocent until proven guilty" is casually jettisoned, doesn't even enter the picture.)

As is common in such cases, however, she is so convinced by her own faulty thinking that she overreaches and winds up showing the vacuity of her position.

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.

I'll note first that this was the second time she mentioned habeas corpus review without noting that the White House's position is that it is under no obligation to allow for such review except at a time of its choosing, which of course renders the whole idea of such a review absurd and her mention of it misleading in the extreme.

But even accepting her argument at face value, it doesn't hold up, for if we had known all, then the feds could have done exactly what she proposes: Be there waiting for the hijackers to show up at the airport, just as they did with Padilla's arrival in the US.

But more importantly, there would have been no need to wait. The DOJ could have struck with "the prosecutor's darling" - conspiracy. Conspiracy, which doesn't require those charged to actually have done anything illegal, only to have planned to do something illegal and for some member of the conspiracy to have committed a single "overt act" toward carrying out that plan (going to flight school would serve nicely).

The author is also a professor of law at Johns Hopkins. Her students are ill-served if this is an example of her legal thinking.