A Delicate Balancing Act: The Case Against Mujahir

By Edwin Smith, Leon Benwell Professor of Law and International Relations

The announcement of the military incarceration of Abdullah Al Mujahir, an alleged al Qaeda operative who is also a United States citizen named Jose Padilla, crystallizes the difficulty government officials face in the effort to prevent further acts of terrorism without violating the standards of justice and liberty that define our nation.

President Bush issued a military order on Nov. 13, 2001, establishing military tribunals to adjudicate the status of those accused of terrorist activities. That order clearly asserted that U.S. citizens could not be tried before the tribunals being established under that order. However, under precedent established by the Supreme Court in the World War II case of Ex Parte Quirin et al., a U.S. citizen who enlisted in the armed forces of Nazi Germany could be tried as an "unlawful combatant" by a military commission.

In the Nazi saboteurs case, the court found that the U.S. citizen involved in the German plot had violated traditional rules of war applicable under U.S. law and international conventions. Today's case is complicated by similar facts: the defendant appears to be a United States citizen and the alleged acts involve a conspiracy to conduct a direct attack on the United States. In addition, the conspiracy involves al Qaeda, an organization that is not "an enemy state" in the traditional sense of the law - but certainly an enemy force that must be reckoned with.

Mujahir's alleged conspiracy involves the detonation of a "dirty bomb" that would spread toxic radioactive materials through detonation of a large conventional explosive. A recent report by the Federation of Atomic Scientists describes the horrendous impact of such a radiological device: While the primary detonation would not involve nuclear fission of the sort that devastated Hiroshima, the spread of radioactive materials could cause massive evacuations even if radiation casualties did not immediately result. Subsequent reconstruction could possibly require demolition of large urban areas that could not to be practically decontaminated. The detonation of a "dirty bomb" is a truly frightening prospect; anyone accused of participation in a conspiracy involving planning for such devastation should suffer very harsh penalties if the conspiracy is adequately proved.

However, the horrendous character of Mujahir's alleged objective requires that particular care be taken to prove that the allegations are true. In addition, measures must be taken to ensure that such horrendous events are prevented. This balance between the need to prove the criminal guilt on an individual and the need to prevent catastrophic harm to the public provides one of the most difficult quandaries of the response to terrorism.

In proving guilt of the defendant, evidence of criminal actions must be presented. Presentation of that evidence may require disclosure of the sources to enable defense attorneys to examine and test the veracity of the allegations. On the other hand, disclosure of intelligence sources through public trials may make it impossible to utilize those sources to discover and frustrate future threats. This dilemma between punishment and prevention demonstrates the excruciating difficulty that results from the application of traditional criminal legal remedies in the current circumstances.

It is too easy to resort to claims that secrecy is required when proving an allegation involving terrorism becomes difficult or burdensome. Those who bring charges alleging individuals are planning enormous future harms should be prepared to present credible proof of those charges, regardless of whether the forum is a federal criminal court or a military tribunal. The rules proposed by the Department of Defense for the president's proposed military tribunals will require substantial proof to be presented in any trial. While it is not clear that the military tribunal contemplated by Attorney General John Ashcroft will function under these newly proposed rules, strict standards must be adopted in the Mujahir case if any punishment is to be perceived as legitimate. In order for the United States to maintain its reputation as a nation of law that values justice, care must be taken in the Mujahir case to show that the pursuit of justice is the highest objective - regardless of the forum adopted.

Professor Smith has worked extensively on issues involving homeland security, military tribunals and other legal issues related to the war on terrorism. He taught a recent seminar on terrorism and issues of national security. He has also served as special counsel for foreign policy to U.S. Sen. Daniel Patrick Moynihan.