Federal Judiciary

We Need an Administrative-Detention Law -- By: Andrew C. McCarthy

It is received wisdom in the United States government that good law enforcement is good security. As we are seeing once again, it ain?t necessarily so.

On Saturday, the Justice Department announced the arrests of three Muslim men in an ongoing terrorism investigation. (Justice, of course, said ?three men? -- I?m adding the ?Muslim? part that the government prefers to gloss over.) David Kris, DOJ?s national-security chief, called the investigation ?fast-paced.? A better choice of word would have been ?frenetic,? since the ?fast-paced? investigation has failed to produce any actual terrorism charges. The men, reportedly Afghan immigrants, have been charged with making false statements during an interrogation by the FBI.

Obviously, that?s not what the feds are really after here -- any more than the feds were really trying to make immigration cases or secure the testimony of material witnesses when, after the 9/11 attacks, they used the immigration laws and the material-witness statute as legal hooks to arrest and hold terrorism suspects.

It has been apparent for almost 17 years -- since the 1993 World Trade Center bombing -- that we need an administrative-detention law. Though President Obama has referred to the 1993 WTC investigation as a model, it actually underlined the shortcomings of approaching terrorism as a mere law-enforcement problem. While the FBI raced to stitch together the forensic proof that the explosion was a bombing, that the bombing was a conspiracy, and that the conspiracy was an international terrorist enterprise, major participants in the bombing were permitted to flee -- several of them overseas. To the extent those players had been identified (and most of them could not be identified quickly), the FBI had not yet uncovered the evidence needed to arrest them for terrorism.

Under American law, a suspect may not be arrested absent probable cause that he has committed a crime. In the standard investigation -- one in which the police have not infiltrated a conspiracy with an informant who can tell them, in real time, who the bad guys are and what they?re up to -- police scramble from the moment they get wind of a plot. The reason is simple: With a few details, experienced cops usually know a plot is under way before they can prove a plot is under way. To build a case that will stand up under the burdens imposed by due-process rules, it takes time: sometimes weeks, often months if key evidence is located outside the U.S., and especially if that evidence is composed of communications in Arabic or another foreign tongue, requiring arduous translations accurate enough for use in court.

These are burdens we are happy to bear in standard criminal cases, say, drug trafficking or fraud. They incorporate safeguards that prevent innocent people from being convicted. Yes, it is regrettable that drugs are dealt and fraud victims fleeced while the police are methodically building their case, but these are the consequences we must accept in exchange for a greater good: ensuring that the liberty of Americans who are presumed innocent is not disturbed unless our government has enough proof to justify prosecution.

National security alters the risk calculus. The damage that can be done to life and property by mass-murder attacks is incalculable; if they can be stopped, we must stop them -- even if the time is not ripe for arrests based on probable cause.

Still, we pay a prohibitive price when we end an investigation too soon and make arrests too quickly. In a broad conspiracy, the leaders almost always are the most insulated actors. The highest-ranking players resist speaking on the phone and appearing in public, dealing instead with a few trusted aides. Usually, they have little or no contact with the foot soldiers who perform the hands-on commission of crimes -- the crimes that first draw police attention. If police start arresting the underlings before they?ve gathered evidence showing the complicity of the higher-ups, the leaders will slip away. In a terrorism case, that means the police fail to capture the most dangerous jihadists: the ones capable of ordering, planning, and recruiting for future mass-murder attacks.

This is the bind we?ve put ourselves in by wedding our security to our criminal-justice processes: Arrest early to prevent an attack and prosecutors won?t be able to make charges stick -- certainly not against the most significant terrorists. But if we wait too long in order for law enforcement to build a solid case, we increase the chance of a catastrophic terrorist attack.

This bind is easy to see in the Denver investigation. It seems evident that a terrorist attack -- more likely, a series of terrorist attacks -- was being planned. Investigators have suggested that there is a connection to al-Qaeda training camps in Afghanistan, and the case has the hallmarks of a terrorist enterprise: the scouting of targets such as Grand Central Terminal, New York City?s ?Fashion Week? events, and football stadiums; a suspect reportedly telling investigators that it was up to the members of the U.S. cell to decide when to launch attacks; and coded communications that plans were moving ahead. A top player, Najibullah Zazi, is said to have driven for the better part of two days to get to New York City from Denver by the anniversary of the September 11 attacks, but discovered that he was being followed and returned to Denver. There was an attempt by seven suspects to rent a 26-foot truck -- an attempt that failed because they would not produce the identification required to do the rental by cash and tried instead to complete the transaction using three different invalid credit cards.

That there were seven reported suspects involved in the attempted truck rental is telling. The feds arrested only three -- Zazi and two others (one of them his father) -- and that was only after letting Zazi go home every night during four days of questioning. Clearly, if the agents had a triable terrorism case against everyone they believe is involved, they?d charge it. Instead, they?ve grabbed three suspects for making false statements. At this point, either they haven?t got enough evidence to make terrorism charges stick or they?ve got evidence on a low-level player or two but can?t risk a public proceeding that would alert other conspirators.

Zazi and the two others now have been identified publicly as suspects, so the others involved in the truck rental -- along with anyone else involved in the plot -- know they are on law enforcement?s radar screen. But because there is not enough proof to arrest them, they are at liberty to flee and obstruct the collection of evidence -- exactly what happened in 1993.

Meantime, David Kris, the DOJ?s counterterrorism chief, announced ?that we have no specific information regarding the timing, location, or target of any planned attack.? This also repeats a consistently wayward pattern of law-enforcement response. In the early stages of a terrorism investigation, government officials typically make such statements in order to calm an anxious public. Kris happens to be a very able guy, and what he said may even be technically true. His statement, however, is counterproductive. If the government didn?t have concrete concerns about a potential attack, police would not be engaged in an intense, ?fast-paced? investigation; saying they are without important information is not going to calm anyone. And if the government does eventually file terrorism charges, a statement from DOJ?s top counterterrorism official that the government lacks evidence of a specific planned attack will be used by defense lawyers to undermine the case.

Countries with more experience dealing with terrorism have developed administrative-detention systems for national-security threats. These systems enable the government, upon showing a court reasonable grounds (but less than probable cause) for suspecting a terrorist plot, to detain all the suspects for several weeks while a case is built.

It is not a perfect solution. There are no perfect solutions. There?s no guarantee that a terrorism case will be made; it is therefore possible that innocent people may be jailed for months, or even longer. Moreover, when such people were released, they would bear the stigma of having been terrorist suspects. But the same thing happens under current law when a suspect arrested in a terrorism case is either acquitted or prosecuted for lesser crimes such as immigration or false-statement offenses.

On the other side of the coin, an administrative-detention system would enable government to prevent an attack from happening, grab all the players it is reasonable to suspect, and have an adequate amount of time to pull together a prosecutable terrorism case before the suspects can flee. Detention, furthermore, would take place under the supervision of a court and with the appointment of counsel. This would ensure that the detention is consistent with law, that it does not go on longer than necessary, and that it is carefully monitored to guard against mistreatment of suspects during interrogation or confinement.

Finally, though it is politically incorrect to do so, it is worth noting that most suspects in international terrorism cases are not American citizens. According to press reports, for example, at least some suspects in the Denver plot are Afghans -- though some of them may be naturalized Americans. Highlighting this fact does not mean that immigrants -- especially legal immigrants -- have no rights, or that their liberty and privacy have no weight in our consideration. But it is not wrong for us to put a higher value on the security of Americans than that of non-Americans, particularly those who have no right to be in our country in the first place. And it bears stressing here that we are not talking about rounding up non-Americans indiscriminately. We are talking about detaining -- for a relatively short time and under court supervision -- persons reasonably suspected of planning mass-murder attacks.

Because we do not have administrative detention for national-security investigations, only three suspects will be appearing in court today, facing only the relatively minor criminal charges the government felt it could afford to bring. Behind the scenes, investigators are frenetically trying to track down evidence and suspects. Maybe they will succeed -- we certainly hope so. But it is at least as likely that people who mean Americans grave harm have scattered, living to fight the jihad another day.

Our criminal-justice system is rightly the envy of the world, but it was designed to contain crime rather than to protect the nation from hostile foreign threats. By relying on it to do that which it is not fit to do -- a job at odds with the presumption of innocence -- we continue to invite catastrophe.

Full post as published by Bench Memos - National Review Online on September 21, 2009 (boomark / email).