March 3, 2005 | USA Today

National Security Comes First

Jose Padilla happens to be a U.S. citizen. He is also, however, alleged by the executive branch to be an unlawful enemy combatant who came here from the headquarters of an enemy against which we are actively at war, al-Qaeda, precisely to conduct terrorist operations on behalf of that enemy.

U.S. District Judge Henry Floyd's ruling that the government must charge Padilla as a common criminal or release him outright endangers this country. The U.S. must appeal.

Undeniably, the issue the judge was asked to deal with is a difficult one, involving a citizen apprehended on U.S. soil before he had the opportunity to execute an atrocity.

The issue, nevertheless, was resolved last June in the Supreme Court's decision in a parallel case that the president is empowered under the Constitution, the laws of war and the sweeping resolution enacted by Congress after the 9/11 attacks to detain a U.S. citizen as enemy combatant during wartime.

Floyd seeks to avoid the force of that decision by emphasizing that the man involved was captured while armed on the battlefield overseas, while Padilla was unarmed stepping off a plane in Chicago. But the Supreme Court did not hold that was the only situation in which the U.S. may regard a terrorist operative as a military opponent. Indeed, by that logic, Mohammed Atta, leader of the 9/11 hijackers, was not an enemy combatant either.

Floyd also says many criminal charges could be brought against Padilla. That could be said in the other case as well. In fact, Osama bin Laden himself has been charged in a 1998 indictment. Surely the judge is not saying the leader of al-Qaeda is not an enemy combatant. Status as a combatant is an objective fact; it is not a function of how the government chooses to investigate it.

And the judge ignores the most frightening implication of his ruling: We must either release a man planning a massive terrorist attack or give him a trial with all the rights accorded an ordinary criminal, including the right to see the government's evidence. That is, in the midst of a war, with our troops in harm's way, we must surrender to the enemy our intelligence, inevitably compromising the methods and sources for obtaining it.

The Constitution, Justice Robert Jackson sagely observed, is not a suicide pact. This ruling, however, points in just that direction. We must be able to protect national security.

– Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.