Unfortunately Mukasey – Letter to the Editor NY Times (unpublished)

2002 NYT Letter December 11 Unfortunately Mukasey

Unfortunately, the editorial, “An ‘Enemy Combatant’s’ Rights” (Dec. 10) 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 persons such a Padilla, whether citizen or not, as enemy combatants, 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 United States 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.”