Reality keeps intruding:
"The position of the executive branch," said Eric M. Freedman, a law professor at Hofstra University who has consulted with lawyers for several detainees, "is that it can be judge, jury and executioner."It is, of course, absolutely arbitrary, because it is secret. "A look at the half-dozen most prominent terrorism detentions and prosecutions does little to illuminate the standards that have informed the government's decisions." Secrecy, and an inability to determine a pattern, is the very definition of arbitrary decision making.
The government says a secret and unilateral decision-making process is necessary because of the nature of the evidence it deals with. Officials described the approach as a practical one that weighs a mix of often-sensitive factors.
"Much thought goes into how and why various tools are used in these often complicated cases," Tasia Scolinos, a Justice Department spokeswoman, said on Friday. "The important thing is for someone not to come away thinking this whole process is arbitrary, which it is not."
Consider the case of Ali Saleh Kahlah al-Marri.
After 16 months of criminal proceedings on fraud charges, and less than a month before Mr. Marri's trial was to start in July 2003, President Bush designated him an enemy combatant. Mr. Marri, a Qatari who had been working on a master's degree at Bradley University in Peoria, Ill., was immediately transferred into military custody and moved to the Navy brig in CharlestonWhy? Because Mr. Marri is not a U.S. citizen.
This year, the same South Carolina federal judge heard challenges from Mr. Padilla and Mr. Marri. In July, the judge, Henry F. Floyd, ruled that the administration was authorized to detain Mr. Marri. Four months earlier, the judge had reached the opposite conclusion in Mr. Padilla's case.The Supreme Court might disagree. But the Justice Department obviated that possibility, by bringing criminal charges against Jose Padilla in court, dropping their claim that he, too, is merely an "enemy combatant." Why?
The difference, he said, was that Mr. Padilla was an American citizen.
The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., reversed the ruling in the Padilla case pand held that he could be detained indefinitely as an "enemy combatant"]. The administration's decision last week to charge Mr. Padilla and try to moot his appeal of the Fourth Circuit's decision to the Supreme Court may have been driven by its desire to maintain a helpful precedent in the circuit where it brings many of its terrorism cases.How far does this go, and for how long?
"They are seeking to keep their options open," said David D. Cole, a law professor at Georgetown, "by avoiding Supreme Court review in the Padilla case. It lets them keep standing the Fourth Circuit decision."
In a hearing in December in a case brought by detainees imprisoned in the naval facility in Guantánamo Bay, Cuba, a judge questioned a Justice Department official about the limits of that definition. The official, Brian D. Boyle, said the hostilities in question were global and might continue for generations.So which should I worry about? Whether or not troops are withdrawn from Iraq? Or whether or not we are a nation of laws, or of men? A very few men?
The judge, Joyce Hens Green of the Federal District Court in Washington, asked a series of hypothetical questions about who might be detained as an enemy combatant under the government's definition.
What about "a little old lady in Switzerland who writes checks to what she thinks is a charitable organization that helps orphans in Afghanistan but really is a front to finance Al Qaeda activities?" she asked.
And what about a resident of Dublin "who teaches English to the son of a person the C.I.A. knows to be a member of Al Qaeda?"
And "what about a Wall Street Journal reporter, working in Afghanistan, who knows the exact location of Osama bin Laden but does not reveal it to the United States government in order to protect her source?"
Mr. Boyle said the military had the power to detain all three people as enemy combatants.