Jose Padilla

Prisoner of War

Authorities weren't particularly interested in building a criminal case against Padilla.

They didn't really have to.

As an enemy combatant — a prisoner of war — Padilla need not be charged with a crime. He could be held until the end of hostilities, a distant and indeterminate point in time that the president has said could be years away. And in the meantime, with no access to a lawyer or protection against self-incrimination, he could become a valuable resource for American intelligence officials. He could be squeezed for every drop of information he might have about al Qaeda.

"If this guy thinks he might be there for 20 years with no recourse, he might just say 'Okay, let's talk,'" one administration official told Newsweek.

As Defense Secretary Donald Rumsfeld put it while speaking to reporters during a trip to Qatar, ""We are not interested in trying him at the moment. We are not interested in punishing him at the moment. We are interested in finding out what in the world he knows."

It's far from clear what, if any, information investigators have gathered from Padilla. But as it turned out, this gangsta-turned-Islamic fundamentalist has come to serve another purpose. As government officials, civil libertarians and academics squared off in a showdown over just how far the government can and should go to protect the public from attack, Jose Padilla the street kid had become the poster child for the debate.

As Jim Bamford, a former prosecutor in Boston and the author of the book Body of Secrets: Anatomy of the Ultra-Secret National Security Agency, put it in an interview with Crime Library, Jose Padilla had in a way become irrelevant to his own case. "There's a principle here," Bamfordsaid, "a principle apart from the individual."

It is, say legal experts, a thorny principle that pits the civil rights of individuals against the administration's responsibility to protect American citizens and interests against a threat by a foreign power, even when that threat comes in the person of an American citizen.

Former Attorney
General Richard
Thornburg (AP)

From a purely legal perspective, it is largely uncharted territory, says former U.S. Attorney General Richard Thornburg, who served under President George Herbert Walker Bush. "There are a number of unresolved legal questions, clearly, because these situations don't arise on a day-to-day basis," Thornburg told Crime Library. If the government's information is correct, he said, then there is little question that the administration has both the right and the responsibility to declare Padilla an enemy and hold him without the protections commonly extended to criminal defendants. But the nation's law libraries offer little guidance, he says.

"The administration is going to press the envelope as far as they can...to deal with people who are bent on doing harm to the United States," he said. In the end, it will be for the courts to decide whether they have jurisdiction and whether the administration has gone too far.