As laudable as Scott Turow's June 13 Outlook piece ["Trial By News Conference? No Justice in That"] may be, his voice will remain a lonely one until a prosecutor's misconduct extracts a tangible sanction in the form of a suspension or disbarment.

In many appellate decisions -- both state and federal -- the court excoriates a prosecutor for misconduct only to decide at the end "no harm, no foul": The court lets a conviction stand and takes no further action against the prosecutor. That is hardly a deterrent to misconduct.

As long as the judiciary abdicates its role in checking the exercises of power of the executive branch, further Guantanamos and Abu Ghraibs are not only possible but likely.



Scott Turow is familiar with U.S. criminal law, but he seems unable to conceive that Jose Padilla's case is governed by a different body of law: the international law of war.

The things that outrage Mr. Turow -- no charges, no lawyer, no hearing and indefinite detention -- would be irrelevant if the U.S. government declared Mr. Padilla to be a prisoner of war under the Third Geneva Convention of 1949.

Charges? Prisoners of war are never charged with anything. They are held not to be punished but to keep them from returning to the fight.

Indefinite detention? The Geneva Conventions require that prisoners of war be released "without delay after the cessation of active hostilities," but this wouldn't help Mr. Padilla much because we have no foreseeable end to hostilities with al Qaeda.

The problem is that the right to be considered a prisoner of war is limited to those fighting for a country that has ratified the convention. Because Mr. Padilla was acting on behalf of al Qaeda, which is not and cannot be a party to the Geneva Conventions, the U.S. government has insisted that he is an unlawful combatant not entitled to be classified as a prisoner of war.

Nevertheless, in principle any government at war has the same right to hold unlawful combatants for the same reason it holds prisoners of war: to keep them from helping the enemy by returning to the fight.