John's surmise here about Jose Padilla was very much correct. Once the Department of Defense had custody, they sweated him for three years, and probably only put him back into the criminal justice system because he had no further information of value. The civil rights issue was willfully delayed until the national security issue was taken care of, which is probably appropriate.
I like John's suggestion that the Department of Homeland Security be renamed the Department of Public Safety, and then we put someone in charge of it who is half a general and half a secret policeman. The image I get is of a very patient spider, waiting in the middle of its web. The kind of man you want running it probably looks a lot like J. Edgar Hoover. On the other hand, maybe you don't want to give that much power to someone that competent.
Perhaps I am alone in thinking this, but it seems to me that the indefinite detention of Jose Padilla is far more defensible than the trial of John Walker Lindh. Both are American citizens with connections to Al-Qaeda, and both are now being held in the United States. Lindh, however, is going through the conventional criminal justice system, while Padilla is being held as an enemy combatant "for the duration" of the war against terrorism.
I discussed the Lindh prosecution in January, and nothing has happened since to change my mind. From what I can tell, he was apprehended outside US jurisdiction while doing nothing demonstrably illegal, unless membership in a foreign militia is illegal, and that's not what he's charged with. Prosecuting Lindh does nothing to advance either the rule of law or national security. With Jose Padilla, matters are quite otherwise. If the information we have is correct, he was actively engaged in a conspiracy to set off particularly loathsome terror weapons in American cities. In his case, it is irrelevant that the evidence against him might not support a conviction for conspiracy. His detention is a national security issue, not a question of law enforcement.
Of course, the arrest and indefinite detention of an American citizen on American soil should give us all pause. Laurence Tribe argues in today's New York Times that Padilla and persons similarly situated should get at least a hearing in federal court, including access to attorneys. Tribe tells us that:
The administration cites decisions from 1942 and 1946 in support of military detention of combatants who are United States citizens. But there's an obvious point worth noting: these decisions arose only because the federal courts were considering the constitutional claims in the first place.
That's perfectly true, but there is another point worth mentioning. Padilla's case is most like that of the German-American saboteurs during World War II. They were tried by military tribunals, but appealed in the federal courts, arguing in part that they should have been tried in civilian court. The convictions were upheld, but certainly Padilla could appeal to the federal courts if he were ever convicted in military court. Anyone tried before a military court can. However, he will not be in that posture unless he is first tried. The Department of Defense seems to have little interest in doing that. They don't want to punish him. They want him to tell everything he knows.
A book I recently reviewed about Francis Parker Yockey, Dreamer of the Day, has quite a lot about the German underground in the United States during the 1930s and 1940s. Yockey was a member of that underground, and later of the Communist one. One thing I did not mention in my excessively long review was that the FBI acted as a recording angel throughout Yockey's mysterious career. Though we also have some reminiscences by friends and family, we see Yockey in large part from the reports of informers and undercover agents. The FBI never did a better day's work than when it kept tabs on the German-American Bund, which it started to do long before the outbreak of World War II. A little more fruitful snooping of this sort would be in order now.
It is because of the important distinction between law enforcement and national security that I must take issue with Peggy Noonan's endorsement of Rudolph Giuliani to head the new department of homeland security. She makes this endorsement in her column of June 14, Rudy's Duty, and for once she is quite wrong. (This is something of a first for her in this area: her column about the Terror War that everyone should read appeared on June 6, The Other Shoe.) Rudolph Giuliani is a terrifying prosecutor. He's a forceful administrator. He's a riveting public presence. What he is not is a general, or a secret policeman.
The head of the new security department has to be a bit of both. His mission is not to get the bad guys, or to uphold the law. His mission is to prevent the mass murder of American civilians. The department will not fight crime. It could succeed if not even a single terrorist is ever brought to trial. Victory might also require the death of a thousand terrorists in pre-emptive raids. Most of the department's duty will be to simply watch. Rudy would not be good at this.
Finally, we come to the question of what the security department is to be called. For myself, "Department of Homeland Security" sounds fine. Many people, however, including Peggy Noonan, think that "Homeland" sounds too German. (The word ultimately responsible for their discomfort is "Heimat," which makes Germans become misty-eyed about haystacks and lederhosen and the indestructible peasantry.) Noonan's own suggestion is "Heartland Security," which she admits may be too precious.
The obvious solution would be something like the "Home Office," the department of the British government responsible for internal police. In most countries, that function is handled by a "Ministry of the Interior." One of the trials of diplomatic protocol officers in Washington is that they have to explain to visiting dignitaries that, yes, of course they may meet the Secretary of the Interior, provided they want to talk about the national parks. Of course, "Home Office" might be difficult to fit into federal nomenclature. Would the head of the department be called the Secretary of Home?
Another possibility would be some variation on "Committee of Public Safety," which has a historical ring but is not ominous. In many jurisdictions in the US, the police and fire services are managed by a "Commissioner of Public Safety." So, for the national department, I would suggest a "Department of Public Safety." This would better reflect the department's function, which would also include disaster relief. The department would be headed by a "Secretary of Public Safety."
To some people, this might sound like a fitting title for a national crossing-guard. If so, then let the innocent be comforted, and the wicked misled.