In the weeks following the Sept. 11 attack, when U.S. Attorney General John Ashcroft sent agents off on a high-profile effort to interrogate thousands of Muslim green card holders and began having the Immigration Service lock up hundreds of Muslim men on visa and other minor violations, he came under heavy criticism from a surprising direction: former FBI officials.
They claimed his dragnet was ruining the government's best chance to find out what terrorists were up to in the U.S. by arresting everyone who seemed remotely suspicious and by scaring any real terrorists deeper underground. As one former G-man said at the time, the way to catch a conspiracy is to patiently watch it develop, and then swoop in and nab everyone.
Now the arrest of alleged "dirty bomb" conspirator Abdullah al Muhajir -- often referred to by his birth name, Jose Padilla -- on apparently thin evidence, has renewed criticism that the government is mishandling the campaign against terrorism.
First, the government arrests al Muhajir, an American citizen, on a material witness warrant as he steps off a plane in Chicago's O'Hare airport. The FBI already had two undercover agents fly in to O'Hare on the same plane with him, without his knowledge. Then, after questioning him in federal detention in New York City, they bustle him off to secret detention in a military brig on a secure Navy base in South Carolina, where they bar him from contact with other inmates, his family and an attorney.
Finally, in a dramatic live television hookup from Moscow, Ashcroft on Monday announced the al Muhajir bust.
"It does seem very stupid that they arrested him, if he wasn't ready to do anything," Michael Ratner, a lawyer with the Center for Constitutional Rights, said in an interview Monday.
In a CBS interview Tuesday morning, Deputy Defense Secretary Paul Wolfowitz appeared to say that the government knew remarkably little about this alleged plot when it nabbed al Muhajir. "He clearly had associates," Wolfowitz said, "and one of the things we want to ask him about is who those associates were and how we can track them down."
And suppose he doesn't want to oblige? So far, it's been five weeks that al Muhajir has been in federal custody, and government sources are saying that he hasn't said anything.
A big question is whether the government has anything substantial at all on the 31-year-old al Muhajir.
It may be that he has almost nothing to tell them.
"In the cases I've handled where the government squeezes people in an organization for information, those people very quickly talk about someone they can afford to give up," says veteran defense attorney Leonard Weinglass. "And who's Padilla to the al-Qaida organization? He's nobody.
"There was no bomb," Weinglass continues. "There are no co-conspirators, at least that the government is telling us about. In his baggage there was no map, no plans, no battery, nothing. At his press conference Tuesday, [FBI Director Robert] Mueller said the allegations against Padilla are based not on a planned attack, not on the preparation for an attack, but on 'discussions' about an attack. That's pretty thin. You can't go to court with a case like this."
If Weinglass and Ratner are right, it may explain why the Justice Department is taking the remarkable, and highly controversial, step of treating this American citizen as a foreign enemy, and holding him, in contravention of his constitutional rights, in a Navy brig. If he were accorded those rights, they would have already had to indict or release him, 30 days having already passed since his arrest. And they would have to be preparing to try him within 90 days of his indictment. The fact that they aren't willing to do that suggests the possibility that the government doesn't think it has enough evidence to convict him, or perhaps even to indict or to hold him in prison. Hence the military approach.
Perhaps they don't want to try him because they don't want to have a lot of top secret information spilling out in court that could be useful to other terrorists. But on the face of it, it doesn't look like there's much information to spill. In which case, why didn't Ashcroft hold off and have federal agents follow al Muhajir? On the evidence of his earlier arrests, he doesn't seem to be a particularly elusive adversary. He's just a Chicago street gang veteran, and not a particularly successful one at that. He was jailed at 14 for assault. And while incarcerated later in Florida, he was dumb enough to tell a prison officer: "If you touch me, I don't know what I'll do."
And that raises the question of why we're learning about al Muhajir now, more than a month after the arrest.
Weinglass suggests it all may be part of an ongoing plan by the White House to divert attention from the Bush administration's critics in Congress, the media and the public.
"Look," he says, "the victims of 9/11 were coming to D.C. today for a rally to call for an independent commission to investigate the government's handling of intelligence. The White House knew those victims would be talking very movingly about the loss of their loved ones. They had to do something.
"The whole policy out of the White House, from the creation of the new Department of Homeland Dysfunction to this announcement is being engineered by [White House advisor Karl] Rove, and Rove's policy is to reduce criticism of the administration.
"Does anyone remember the FBI woman from Minnesota any more after this?"
So now that we've got the alleged dirty bomber, what is the government going to do with him? Maybe nothing. Citing the rules of war and precedents dating to the Civil War, they have classified him as an enemy combatant. That would allow the government to hold him until the hostilities are resolved. But unlike prior wars, there may be no defined end to the war on terror. That means al Muhajir, along with U.S.- born Saudi Yasser Esam Hamdi and other suspected Taliban and al-Qaida fighters in U.S. custody, could be in the brig for a long time to come.
Ironically, constitutional scholar Laurence Tribe of Harvard Law School sees another, much different, danger.
"The people who are calling for Padilla to get a civil trial are pushing in a direction that could be harmful to civil liberties in the long run," says Tribe.
His fear: that the government doesn't have much evidence against Padilla, and that if his case goes to trial, jurors with visions of 9/11 fresh in their minds will convict him anyway. That, Tribe says, would create "what is in effect a thought-crime."
"If we bend the rules as to what is a conspiracy, to say that the mere intention to do something is enough to make you guilty, that's a very scary thing," he says. The alternative -- letting him go -- "is also very scary, because if he is part of al-Qaida, he's part of a group that's capable of committing crimes like 9/11."
That leaves Tribe hoping that the government will just keep al Muhajir in military detention, though with access to a lawyer and with the right to go to the federal courts to force the government to prove that it has sufficient evidence to hold him.
Weinglass bluntly disagrees.
"Padilla is an American citizen," Weinglass says. "He should be indicted and tried in a civilian court as a citizen, with all his rights."