When Attorney General Alberto Gonzales announced that Jose Padilla would be transferred to the federal justice system from military detention, he said almost nothing about the standards the administration used in deciding whether to charge terrorism suspects with crimes or to hold them in military facilities as enemy combatants, the New York Times says. “We take each individual, each case, case by case,” Gonzales said. No one outside the administration knows how the determination is made whether to handle a terror suspect as an enemy combatant or as a common criminal, to hold him indefinitely without charges in a military facility, or to charge him in court.
The administration has argued that judges should have essentially no role in reviewing its decisions. The change in Padilla’s status shortly before the government’s legal papers were due to the Supreme Court suggested that the administration wanted to keep the court out of the case. “The position of the executive branch,” said Hofstra University law Prof. Eric Freedman “is that it can be judge, jury and executioner.” The government says a secret and unilateral decision-making process is necessary because of the nature of the evidence it deals with. “Much thought goes into how and why various tools are used in these often complicated cases,” said Tasia Scolinos, a Justice Department spokeswoman. “The important thing is for someone not to come away thinking this whole process is arbitrary, which it is not.” A look at the half-dozen most prominent terrorism detentions and prosecutions does little to illuminate the standards that have informed the government’s decisions.