John Farmer, a former New Jersey attorney general who advised the 9/11 commission, had an interesting op-ed in The New York Times
yesterday. The José Padilla case notwithstanding, Farmer argues, the
regular criminal-justice system simply isn't well suited to dealing
with terrorists:
The use of the criminal law in terrorist cases has never been an
easy fit. After all, the primary purpose of counterterrorism is the
prevention of future acts, while the criminal law has developed
primarily to punish conduct that has already occurred. The question
raised by the Padilla trial is whether a case about an attack that
never actually happened can be tried in the criminal courts without
transforming the nature of that system itself.
The answer is
no. In order to make the criminal justice system an effective weapon,
we have already started extending the reach of criminal statutes to
conduct that has never before been punishable as a crime.
At first blush, this seems like a reasonably convincing argument. Less realistic is Farmer's proposed solution:
It is time to stop pretending that the criminal justice system is a
viable primary option for preventing terrorism. The Bush administration
should propose and Congress should pass legislation allowing for
preventive detention in future terrorism cases like that of Mr.
Padilla. It is the best way to ensure both the integrity of our
criminal law and the safety of our nation.
There are only two problems with this plan: the Bush administration
would never propose such a system and Congress would never assent to
it. The administration presumably believes it already has the
authority to detain anyone it deems a would-be terrorist. As a result,
it's loath to ask Congress to approve any system along these lines.
(Jack Goldsmith rightly noted that this reluctance to work with Congress has proven a major handicap in the war on terror.)
As for Congress--well, if you
were Pat Leahy or John Conyers, would you be willing to entrust the
Bush administration with the authority to engage in preventive
detention of any kind, given its track record in the war on terror? The
idea would be a non-starter. I'm with Farmer that in an ideal world
there'd be a carefully constructed system for detaining terrorists
before they act, but that requires a degree of trust between the
executive and legislative branches that won't exist for the next year
and six days, at least.
--Josh Patashnik