Defendants, Not Combatants

By Joanne Mariner, FindLaw.com. Posted July 9, 2003.

Boston federal judge William G. Young garnered national media attention last January when, in sentencing "shoe bomber" Richard Reid to several terms of life imprisonment, he dismissed Reid's claim to be taking part in a war against the United States. "You are not an enemy combatant," insisted Young. "You are a terrorist."

The New York Post ran a photo of Judge Young on its cover the next day, praising him as a "tough-talking federal judge." But what it failed to mention in describing the Boston jurist's patriotic outburst was that his message was directed at the Bush Administration at least as much as it was at Reid.

Seeking to evade civilian trial guarantees, the administration seems ever more inclined to treat terrorism suspects as wartime enemies. Although it claims to do so for the worthiest of reasons, its actions seem opportunistic, at best. "Enemy combatants," under the rules the Pentagon applies, have no status or protection under the laws of war and are unable to assert their ordinary rights as criminal defendants.

Viewed conceptually, the civilian and military systems are two different worlds. Under the Bush Administration's authority, however, the overlap is considerable. While Reid had his day in federal court, similar cases are likely to be tried before military commissions. Indeed, just two weeks ago, the government put an abrupt end to another federal prosecution by transferring the defendant to a Navy brig.

With a stroke of the pen, the detainee, a Qatari student arrested in Peoria, Illinois, was
transformed from a criminal suspect into an "enemy combatant."

In presiding over the Richard Reid case, Judge Young was the first to challenge such dubious prosecutorial maneuvers. Reid, a British citizen accused of trying to blow up a jetliner, was such a likely candidate for designation as an enemy combatant that Young issued an emergency order in March 2002 to block the defendant's transfer out of the jurisdiction.

Although Judge Young later revoked his emergency "do not move him" order, concluding that he lacked the power to compel the government to prosecute Reid in his courtroom, he made an eloquent case for keeping terrorism trials in the civilian court system. Implicitly criticizing the lesser procedural rules that the Bush Administration has fashioned for military tribunals,

Young lauded prosecutors' efforts to show "formal proof beyond a reasonable doubt in a public courtroom."

Besides the greater fairness inherent in civilian trials, Judge Young underscored their symbolic value. By bringing a case to trial in federal court, Young explained, the government "invigorates and strengthens our democracy . . .and demonstrates to the world at large its absolute faith in the strength and independence of our institutions."

While the Reid prosecution ended successfully -- in a guilty plea and a heavy sentence --Judge Young's fear that the government might forum-shop between the civilian and military systems were recently borne out in the case of Ali Saleh Kahlah al-Marri. Al-Marri, the Qatari student whose case was yanked out of federal court, was originally detained in December 2001, the same month that Reid was arrested.

Al-Marri, like Reid -- and like Jose Padilla, another "enemy combatant" now in military custody -- was arrested far from any battlefield. He was unarmed, and carried no military gear or other indicators of martial status.

The FBI did, however, find evidence to implicate al-Marri in criminal activity. Indeed, although the presidential order directing his transfer to military custodyaccused him of engaging in "hostile and war-like acts," the civilian charges he faced involved credit card fraud and lying to FBI agents.

Up until he was declared an enemy combatant, al-Marri was looking at a July 21 trial date in Peoria, Illinios. Now that he languishes in incommunicado detention, his future is far less certain. What seems clear, however, is that if and when the Pentagon decides to try him, the prosecution will take place before a military commission.

Last week, with President's Bush designation of six detainees as eligible for trial before military commissions, the trend toward reliance on a parallel system of justice to prosecute crimes of terrorism gained real momentum. It seems very likely, in fact, that military commission proceedings will begin within the next month or so.

Judge Young, writing in the Reid case, said that the move toward trying federal crimes in military commissions was "the most profound shift in our legal institutions" he had witnessed in his lifetime. What he decried, most of all, was that this shift had "taken place without engaging any broad public interest whatsoever."

Now that these proceedings are poised to begin, it is time for the public to start paying attention. At Reid's sentencing hearing earlier this year, Judge Young outlined compelling reasons to do so.

Young told Reid that he had been tried in federal court so that justice in his case could be administered "fairly, individually, and discretely." And he explained, crucially: "Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties."

Joanne Mariner is a writer for FindLaw.com.

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