Why Civilian Trials for Terrorists / Enemy Combatants are wrongheaded

Andy McCarthy nails it again ....

Padilla Proves the WEAKNESSES of the Civilian Justice System [Andy McCarthy]

The Left's latest effort to attempt to defend the Obama administration's mishandling of Christmas bomber Umar Farouk Abdulmutallab is the "Bush did it" canard. Obama apologists are highlighting cases the Bush administration sent to the criminal justice system in order to claim that Obama is simply following Bush precedents. Therefore, the argument goes, criticism of Obama is just political gotcha.

I deal with this claim in the context of the comparison of Abdulmutallab to "Shoe-bomber" Richard Reid in my column this afternoon. Bill Burck and Dana Perino also have a very comprehensive post today, discussing Reid and "Dirty Bomber" Jose Padilla. I don't want to belabor the points that have already been made. I do, however, want to address an under-appreciated aspect of the Padilla case.

Padilla is actually the case that best shows the limitations and inadequacies of the civilian justice system as applied to enemy combatants. This fact is obscured because, as the Left keeps repeating, he was eventually transferred from military custody to the civilian justice system, where he was convicted.

Here's what they never tell you: He was not convicted of the most important plot we had against him — the conspiracy with KSM, Binyam Mohammed, and others to carry out a second wave of post-9/11 attacks inside the United States. He was never indicted on that plot because he could not be convicted applying civilian due process standards.

Padilla refused to give information to the FBI, using its regular protocols. It was only when he was designated as an enemy combatant and transferred to military custody (no lawyer involved in interrogations, no Miranda, no case to plea bargain) that he began to give up valuable information. None of those confessions could be admitted under the standards applicable in civilian courts.

Moreover, we knew a lot of other information about him from the interrogations of other Qaeda detainees, like KSM, by the CIA. But that information, too, could not be admitted under civilian court rules unless we were willing to give the sources immunity from prosecution. Since we were never going to immunize the likes of KSM, that was never going to happen.

So how was Padilla prosecuted? By luck, we had another, unrelated case on him. It had nothing to do with his plots against the United States. He was found to be a tangential but complicit member of a conspiracy to support terrorist operations outside the U.S. He was indicted for that plot and eventually convicted. But he received a comparatively minor sentence (17 years) rather than the life-sentence he should have and would have gotten if his major activity could have been proved in a civilian court. Alas, it could not. Thus, he stands to be released from prison in a few years — and, because he is a U.S. citizen, he will be released into our country.

Padilla stands for the proposition that someone can be very dangerous to the American people, we can be in a position to know he is very dangerous based on reliable intelligence, and yet, we can be unable to convict him because of the burdensome due process standards that apply to civilian criminal prosecutions. Padilla is not proof that the system works. He is proof that, sometimes, it cannot work — and that we therefore must have other means besides civilian prosecution to detain and interrogate some of the worst terrorists.