Unfortunately, your Dec. 10 editorial “An ‘Enemy Combatant’s’ Rights” may be accurate in describing Judge Mukasey’s opinion in the Padilla case as a victory for the president. To the extent that the decision permits the president to designate a person such as Jose Padilla, whether citizen or not, as an enemy combatant, it is a win for the administration. However, in my view, that decision is erroneous. It dangerously blurs the distinction between criminal law and the laws of war.
Padilla was allegedly planning a criminal act. He was not, as far as is known, acting on behalf of a state or part of the armed forces of a state. In those circumstances, the laws of war are not applicable and he cannot be treated as an enemy combatant. He must be charged and brought to trial under the many U.S. criminal statutes that punish his alleged acts.
The administration apparently wants to treat domestic criminal acts (alleged acts of international terrorism) under the laws of war. This gives it the advantage of jailing people indefinitely without charges and trial. However, those core rights are guaranteed by our Constitution and by international law; they cannot and should not be evaded by labeling a detainee as an “enemy combatant.”
President, Center for Constitutional Rights
Co-counsel for Guantanamo detainees in Rasul v. Bush