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What’s the difference between a criminal and an enemy? A crime and an act of terrorism? One year after President George W. Bush launched the war on terrorism, the dividing line is murkier than ever. The government still hasn’t articulated a standard for how it decides whether someone will face criminal charges in federal court or be held indefinitely and incommunicado in a military jail, as is the case with U.S. citizens Yaser Hamdi and Jose Padilla. The question has taken on an added urgency because the administration, according to recent reports, may transfer alleged terrorist conspirator Zacarias Moussaoui out of the federal court system to be tried before a military tribunal. Across the country, 17 others face federal terrorism-related charges, and some attorneys fear that the status of these defendants may also be subject to change. “There’s too much reason to believe that this whole thing is arbitrary and almost whimsical,” says Robert Levy, senior fellow in constitutional studies at the Cato Institute. Lawyers involved in these cases say it’s like operating in a shadow world, where wartime necessities of secrecy, presidential fiat, and preventive detention have converged with a justice system predicated on precedent, predictability, and openness. “There’s no comprehensive plan,” says Jersey City, N.J., solo practitioner Donna Newman, who represents Padilla. “Unlike our criminal justice system, where Congress sets forth a crime and we have elements and evidence and we know where we’re going, we don’t have any of that here.” Underscoring the seriousness of the question is that the decisions being made now are also creating precedent. When asked how an enemy combatant designation is made, the White House referred the question to the Justice Department. The Justice Department referred the question to the White House. The White House did not return subsequent phone inquiries. THE FIRST ENEMY COMBATANTS Arrested at Chicago’s O’Hare airport on May 8, 2002, Jose Padilla was detained as a material witness in the terrorism investigation until June 10, when Bush ordered his transfer to the custody of the Department of Defense as an enemy combatant. Since then, Padilla has been in the brig in Charleston, S.C. Newman, his attorney, says neither she nor her co-counsel have been allowed to see, speak to, or give their client a message since his status changed. And the government has rebuffed their requests to see the evidence on which they designated her client an enemy combatant. “I call it the ‘Trust Me Doctrine,’” Newman says. She has filed a habeas corpus petition on Padilla’s behalf that is pending. Padilla’s situation has left legal scholars wondering whether other defendants, specifically those charged with providing material support to terrorists or levying war against the United States, could be shuttled, like Padilla, from federal court to a military brig. “We have a U.S. national who is alleged to have been involved in planning an attack that puts him in the company of individuals whom we greatly suspect and want to apprehend,” says Douglas Kmiec, dean of Catholic University Columbus School of Law. “And by virtue of bad company, he has been placed on the enemy combatant side of the line. I’m not certain that, ultimately, his actions would be found any different than those charged with a violation of the material support statute. He straddles that line.” So, it would seem, do Yaser Hamdi and John Walker Lindh, the so-called American Taliban. Both men are U.S. citizens, and both were captured fighting for the Taliban in Afghanistan. Lindh was accused in federal court and pleaded guilty to supplying services to the Taliban and carrying a firearm in the commission of a felony, charges that brought a 20-year prison sentence. Hamdi, though, after an initial stint at Guantanamo Bay, was shipped to the Norfolk, Va., brig as an enemy combatant, where he remains without access to counsel. If Moussaoui is transferred, says Joseph Onek, senior counsel and director of the Liberty and Security Initiative at the Constitution Project, “it would send a terrible signal, a signal that the best justice system in the world, the one we’re trying to promote all over the world, somehow is incapable of trying Moussaoui and that we have to move to a military tribunal.” According to a Justice Department official, there is nothing that would legally bind the department from dropping the criminal charges and allowing Moussaoui to be tried before a military tribunal. Likewise, there is nothing legally binding to prevent a change of status for the 17 people charged with providing military support to terrorists. Right now, they are criminal defendants, but the president, in his capacity as commander in chief, could yet designate them enemy combatants, rendering them virtually without civil rights. Frank Dunham Jr., the federal public defender in Alexandria, Va., who represents both Moussaoui and Hamdi, did not return calls seeking comment. WHOSE CALL? It’s also unclear who draws the line between enemy and criminal. While Bush must make the formal designation, in the case of Padilla he did so on the recommendation of the attorney general and the secretary of defense, according to an announcement at the time issued by Attorney General John Ashcroft. According to a filing in the Hamdi case, it would appear that the military makes the initial determinations. The filing states that a secret declaration provided to the court “specifically delineates the manner in which the military assesses and screens enemy combatants to determine who among them should be brought under Department of Defense control.” There has always been tension between the rules of armed conflict and the rules of law enforcement during times of war. But the war against terrorism is a different kind of war, an ambiguous war with undefined battlefields, no sovereign enemy power, and no end in sight. The enemy is here. The enemy is everywhere. And the question that has students of the U.S. legal system in knots is: What should the government do with a suspected enemy when it catches one? Neal Sonnett, chairman of the American Bar Association’s Task Force on Treatment of Enemy Combatants, says “most offenses against the law of war could also be characterized as offenses against the United States. It’s really a matter of how the government wishes to proceed.” For example, the five people charged in Portland, Ore., with levying war against the United States could also fit the description of combatants for the enemy. Dean Kmiec suggests that those who are captured on the field of battle and those who are instrumental in planning terrorist attacks could be considered enemy combatants. Those who assist or finance terrorists, but do not directly participate in the terrorist activities themselves, could be charged with providing material support to terrorists. Former Attorney General William Barr, now general counsel to Verizon, suggests that the line between enemy combatant and a person charged with supporting terrorists could be drawn based on terrorist training camp attendance. “If someone went to a training camp, that would support the premise that he is a combatant,” Barr says. A DIFFERENT TOOL But the administration has, thus far, been unwilling or unable to explain how it decides whether someone is an enemy combatant, who can be held without charge, or a criminal, subject to federal law. The lack of information has left many observers trying to decipher the administration’s choices. For example, federal authorities recently arrested five people whom they had witnessed taking target practice at an Oregon gravel pit while wearing turbans. Several of them had attempted to enter Afghanistan after Sept. 11, 2001, in an effort to join the Taliban. They returned to Oregon after failing in their efforts. Last month, federal prosecutors charged the five with conspiring to levy war against the United States. Six men who allegedly attended an al Qaeda training camp in the summer of 2001 were arrested in Lackawanna, N.Y., this fall and charged with providing material support to terrorists. And in Detroit, three men accused of running a ” ‘sleeper’ operational combat cell” were charged with providing material support for terrorists. Trial was scheduled to begin on Sept. 17, but on Aug. 28., prosecutors introduced a superseding indictment that had no new charges. Instead, it offered a new theory of the case. According to the new indictment, the cell was not simply a support unit for terrorists, it was part of a conspiracy “ to cause economic harm to U.S. businesses.” In all of these cases, the Justice Department has chosen to charge defendants with, among other things, violations of the material support statute included in the Anti-terrorism and Effective Death Penalty Act of 1996. But it’s a tool that could prove troublesome. The U.S. Court of Appeals for the 9th Circuit — the only circuit thus far to rule on the constitutionality of the material support statute — narrowed the law’s reach significantly. The court, which has jurisdiction over Oregon and Washington state, held in 1998 that language making it unlawful to provide “personnel” or “training” to terrorists or terrorist organizations was unconstitutionally vague. Two federal district judges and a magistrate judge have reached opposite conclusions from the 9th Circuit’s ruling. Jonathan Turley, a professor at the George Washington University Law School who has been studying the issue, says that the “material support statute is maddeningly ambiguous,” adding, “What qualifies as material support is virtually undefined.” In the Detroit case, the judge has imposed a gag order so prosecutors and defense lawyers can’t talk publicly. But William Swoll, an attorney in Detroit who represented a local Arab-American man detained in the post-Sept. 11 dragnet and who has been watching the case closely, says it would not surprise him if the government decided to dismiss the charges and designate the three defendants as enemy combatants before trial. “It appears that every time the government’s feet are held to the fire, the government finds some solution for not going to trial,” Swoll says. “So, I expect, if the government prevails in Padilla [ v. Bush], it would be an option. It makes sense in light of the government’s conduct so far.”

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