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Terror and the Constitution

August 4, 2003



If the United States is to win the war on terrorism, constitutional rights must remain intact. That's why the Justice Department's record to date in handling accused terrorists disturbs many thoughtful people.

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• The trial of Zacarias Moussaoui, the French citizen accused of being the "20th hijacker" in the 9/11 plot, has bogged down in federal court. Mr. Moussaoui, representing himself, won a judge's ruling that he be allowed to question a senior Al Qaeda figure in US custody. Prosecutors are fighting the ruling on national security grounds. They may decide to declare him an "unlawful enemy combatant" and move him to a military tribunal.

• Yaser Esam Hamdi, a US citizen, was arrested in Afghanistan with Taliban troops, carrying a rifle. Labeled an unlawful enemy combatant, he is being held incommunicado in a Norfolk, Va., brig. The federal appeals court in Richmond has ruled he has no right to a lawyer.

• Jose Padilla, a US citizen, is in a military jail in South Carolina, accused of involvement in an Al Qaeda plot. He is being held as an unlawful enemy combatant and is not allowed to communicate with his court- appointed lawyers. An appeals court is now weighing a district judge's ruling that he has the right to challenge his detention and consult his lawyer.

• Six Yemeni Americans from the Buffalo, N.Y., area pleaded guilty to terror charges and received prison terms of 6-1/2 to 9 years. Prosecutors presented no evidence that the men - who admitted that they traveled to Afghanistan before 9/11 and spent time in Al Qaeda camps - were members of a terrorist "sleeper cell." That's because there was no trial. There was no trial, defense lawyers say, because the men were petrified they would be declared unlawful enemy combatants and sent to a military jail. Supporters insist that while the men's actions were incredibly foolish, none planned violence, and their sentences are overly harsh.

Do US citizens, even if declared unlawful enemy combatants, retain the constitutional right to file a writ of habeas corpus - the right to challenge their detention in court? That's a right rooted deep in English common law. And if so, what is that right worth if a detainee can't consult a lawyer?

The administration rightly points out that the US is at war with an unconventional enemy. And it is correct to detain that war's combatants - even if they don't worry about the niceties of the Geneva Convention - and to try them in military tribunals.

But the government violates the Constitution when it claims it can remove US citizens in the United States from the criminal-justice system, indefinitely detain them without challenge, and deny them access to a lawyer. The courts should require the Justice Department to justify before a federal judge the unlawful-combatant designation of a US citizen or legal resident - and the defendant should be able to consult with a lawyer in challenging that designation.

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