JOSE PADILLA, the so-called dirty bomber, is expected to be sentenced by a federal judge in Miami th

JOSE PADILLA, the so-called dirty bomber, is expected to be sentenced by a federal judge in Miami this week, and judging from the reaction to his conviction last summer the case will be hailed by many as a triumph of the use of criminal law as the primary weapon against domestic terrorism.

A closer look at the Padilla case and other terrorism prosecutions reveals, to the contrary, that the continued reliance on our criminal justice system as the main domestic weapon in the struggle against terrorism fails on two counts: it threatens not only to leave our nation unprotected but also to corrupt the foundations of the criminal law itself.

The use of the criminal law in terrorist cases has never been an easy fit. After all, the primary purpose of counterterrorism is the prevention of future acts, while the criminal law has developed primarily to punish conduct that has already occurred. The question raised by the Padilla trial is whether a case about an attack that never actually happened can be tried in the criminal courts without transforming the nature of that system itself.

The answer is no. In order to make the criminal justice system an effective weapon, we have already started extending the reach of criminal statutes to conduct that has never before been punishable as a crime.