Still Searching for a Strategy Four Years After Sept. 11 Attacks - New York Times

Still Searching for a Strategy Four Years After Sept. 11 Attacks - New York TimesNovember 23, 2005
News Analysis
Still Searching for a Strategy Four Years After Sept. 11 Attacks
By ADAM LIPTAK

Four years after the terrorist attacks of 2001, the government has yet to settle on a consistent strategy for holding and punishing people it says are terrorists. Its efforts remain a work in progress, notable for false starts and a reluctance to have the executive branch's broadest claims tested in the courts.

Last year, three Supreme Court decisions turned back the administration's boldest positions. Government lawyers do not seem eager to give the justices a vehicle for elaboration, at least not one that involves Jose Padilla, an American citizen captured on American soil.

Mr. Padilla's lawyers filed an appeal in the Supreme Court last month, asking a fundamental question: "Does the president have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

The administration says there is no need to answer that question just now. President Bush, in a directive signed on Sunday and made public yesterday, ordered the Defense Department, which had been holding Mr. Padilla as an "enemy combatant," to transfer him to the Justice Department "for the purpose of criminal proceedings against him."

That move, the administration says, renders Mr. Padilla's appeal to the Supreme Court moot.

The Supreme Court has already accepted one case this month concerning the scope of the president's power to fight terror. That one involves whether he has the authority to try detainees held at Guantánamo Bay, Cuba, for terrorist offenses before military commissions there. The administration had vigorously urged the court not to hear the case.

Last year, in three cases involving detainees accused of terrorism, the court ruled that people held at Guantánamo and those designated by the president as enemy combatants had the right to challenge their detentions in the courts or before a "neutral decision maker."

The question of how that should work has engaged all three branches of the government. The lower courts have offered varying answers to the administration's narrow interpretation of the decisions. Congress, too, may add its voice, through pending legislation that would limit some detainees' access to the federal courts.

The Padilla case illustrates the seemingly improvised and reactive nature of the administration's strategy. The government initially held Mr. Padilla as a material witness, after detaining him at a Chicago airport in May 2002. When it feared that a federal judge would determine that indefinite detentions of material witnesses were unlawful, it designated him as an enemy combatant in June of that year.

Yesterday, after Mr. Padilla spent more than three years in a Navy brig, the government decided to charge him as a criminal.

The accusations against Mr. Padilla have changed, too. He was initially held on suspicion of planning to detonate a radioactive device in the United States. But the charges unsealed yesterday concerned supporting terrorism abroad.

That progression was a natural one, said John Yoo, a former Justice Department official who played a central role in formulating the administration's approach.

"Whatever benefits would have been gained by interrogating him are now gone," said Professor Yoo, who teaches law at the University of California, Berkeley.

The timing of the government's decision to charge Mr. Padilla is nonetheless suggestive.

"They obviously saw that their position is untenable," Eric M. Freedman, a law professor at Hofstra University who has consulted with Mr. Padilla's legal team, said of the government.

Jonathan M. Freiman, a lawyer for Mr. Padilla, said his client would continue to seek Supreme Court review even though the government's position was that the enemy combatant case was now moot.

The government could redesignate Mr. Padilla as an enemy combatant if he was found not guilty at his criminal trial. As long as the government does not disclaim that right, Mr. Freiman said, the case is, in the legal jargon, "capable of repetition yet evading review" and so not moot. He added that the government refused to rule out that possibility yesterday.

"It's a power they claim to have not only over my client, but every American citizen," Mr. Freiman said. "They can seize anyone, anywhere."

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled against Mr. Padilla in September, reversing a trial judge who had ordered him freed. The court framed the issue in a different way.

"The exceedingly important question before us," Judge J. Michael Luttig wrote for a unanimous three-judge panel, "is whether the president of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with Al Qaeda, an entity with which the United States is at war."

The answer, Judge Luttig said, was yes, citing the powers granted to the president by Congress after the Sept. 11 attacks.

Professor Yoo said that the government necessarily had to react to decisions from the courts. "You do see a lot of uncertainty," he said, "with a lot of people scrambling to see what the federal courts will do."

Geoffrey R. Stone, a law professor at the University of Chicago, said the administration's decision to charge Mr. Padilla with a crime, after he had been held "incommunicado" for this long, was a momentous one.

"The most interesting question now is whether the government will finally permit Padilla to say whatever he has to say," Professor Stone said, "both about his own culpability and about what's happened to him over the past three years."