NewsMax.com Wires
Wednesday, June 12, 2002

A "dirty bomb" is a conventional device wrapped in radioactive material. When the device explodes it causes immediate damage and spreads the radioactive material over a broad area, causing secondary deaths and sickness.

Al Muhajir, born Jose Padilla, was arrested May 8 at Chicago's O'Hare International Airport after flying in from Pakistan. He had been out of the country since 1998.

U.S. officials say he trained in al-Qaeda camps in Pakistan and Afghanistan. His specialty was wiring explosives and handling radioactive materials.

He also conspired with senior al-Qaeda officials to set off a "dirty bomb" in the United States, again according to U.S. officials, but his mission was known early.

The CIA and other U.S. intelligence assets had been tracking al Muhajir for some time before his arrest. Attorney General John Ashcroft said proof of the conspiracy came from multiple, corroborating sources.

So why isn't al Muhajir facing trial in the United States?

Justice Department officials aren't talking. They simply say he has been turned over to the Defense Department as an "enemy combatant," and can be held indefinitely.

Washington Post Frets for al Muhajir

The department's position was attacked Tuesday by the lead editorial in the Washington Post.

"If [the position is] correct," the Post said, "nothing would prevent the president – even in the absence of a formal declaration of war – from designating any American as an enemy combatant. Without proving the correctness of the charge before a court, the military could then detain that person forever. And having done so, it could prevent that detainee from hiring a lawyer to argue that the government, in fact, has it all wrong. If that's the case, nobody's constitutional rights are safe."

The Post's hyperventilated language notwithstanding – not everyone conspires with al-Qaeda, and presumably you wouldn't end up in a Navy brig unless someone had good reason for thinking you did – the editorial has a valid point.

Deputy Attorney General Larry Thompson cites a World War II case, ex parte Quirin, to buttress the government's position. In Quirin, the Supreme Court supported the military commission custody and trials of eight Nazi combatants who came ashore in Long Island to commit sabotage. The eight included a man who had lived in the United States as a child, whose parents had been naturalized but had moved back to Germany as a child without renouncing his U.S. citizenship.

In Quirin, the government argued that the man had in effect renounced his citizenship through his actions. However, no one has come close to making that argument in regard to al Muhajir.

Which makes Quirin pretty thin gruel to support al Muhajir's indefinite incarceration in a brig in South Carolina.

So what's driving the government's actions? Why isn't al Muhajir facing trial?

The most obvious answer is that the Bush administration doesn't want to reveal its intelligence sources, probably Pakistan’s Inter Services Intelligence agency and National Security Agency intercepts, during a trial.

Defining Conspiracy

But a more potent reason may be that the concept of a conspiracy is still very much up in the air, legally speaking.

A federal appeals court ruling more than two years ago sent shock waves through prosecutors' offices around the United States. A divided panel of the U.S. Court of Appeals for the 9th Circuit ruled that a conspiracy ends when the government frustrates its objective.

The case decided by the appeals court involves two men who tried to pick up a load of marijuana and cocaine in Idaho after it had been confiscated by government agents in Nevada. The appeals court said the men could not be charged with conspiracy to distribute the drugs, because there was no proof they had been involved before the confiscation of the drugs, which ended the conspiracy.

The ruling so alarmed the Justice Department that it asked the Supreme Court for review, saying any decision in the case could have a profound effect on a broad range of criminal conspiracies, even terrorism cases. The justices granted review last month and will hear argument sometime next term on whether a conspiracy ends when its main purpose is frustrated.

If the eventual answer from the Supreme Court is yes – by no means a certain outcome – there is a possibility that al Muhajir and others like him are not legally guilty of the crime of conspiracy.

FBI Director Robert Mueller said the plot to use a dirty bomb in the United States never went beyond "the discussion stage." If that is the case, under the reasoning of the 9th Circuit appeals court, the dirty bomb conspiracy might have ended with al Muhajir's arrest, before any concrete actions were taken in the United States to further its objective.

The odds are that any eventual Supreme Court decision in the Idaho case will reverse the appeals court.

But until then, the government might not want to take a chance with the man accused of trying to bring al-Qaeda terror once again to American soil, even if it means playing a little loose with the Constitution of the United States.

By Michael Kirkland, UPI legal corresondent.

Copyright 2002 by United Press International.

All rights reserved.

Read more on this subject in related Hot Topics:

Al-Qaeda

Bush Administration

War on Terrorism

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