Terror on trial: Citizen detentions in the spotlight

The legal controversy fomented by the indefinite detention of two American citizens in military prisons is being very closely watched – and loudly debated – as their cases go through the judicial appeals process.

The issue: Does President Bush have the constitutional authority to unilaterally declare an American citizen an enemy combatant, thus denying him or her due process and other rights?

It is an issue many legal analysts believe may become the first significant terrorism-related question to arrive at the US Supreme Court, perhaps as early as next year. It remains unclear how the high court may rule.

Yaser Hamdi and Jose Padilla are being held in military prison without access to lawyers or the opportunity to challenge the legality of their detention.

Mr. Hamdi surrendered as a member of the Taliban forces in northern Afghanistan last fall. He was turned over to US intelligence officials, who classified him as an enemy combatant and placed him in military custody.

Mr. Padilla is alleged to have discussed with an Al-Qaeda leader the possibility of exploding a radiological "dirty-bomb" in the US. He was arrested upon arrival at Chicago O'Hare airport in May and held until being classified as an enemy combatant and transferred to military custody

Government lawyers maintain both men violated the laws of war by supporting terrorism. As unlawful enemy combatants, they are not entitled to constitutional protections despite their US citizenship, they say.

Civil libertarians counter that under America's system of government by checks and balances, American citizens detained within US borders are entitled to the full protections of the Constitution. And that includes an opportunity to appear before a neutral judge to test the government's allegations. They say the president is abusing his power as commander in chief by applying battlefield justice within the American homeland.

"Americans should be shocked," says Jonathan Turley, a professor at George Washington University Law School. "The way Hamdi and Padilla are being treated is an affront to the rule of law."

Ruth Wedgwood, a law professor at Yale University, disagrees: "I think the first duty of government is to protect innocent lives."

All analysts agree there is more at stake than just the future liberty of two accused Al-Qaeda sympathizers. The Padilla and Hamdi cases touch on many of the same issues directly confronted by Abraham Lincoln, Franklin D. Roosevelt and other wartime presidents over the proper scope of their power during times of national emergency.

In Lincoln's case, he unilaterally suspended the writ of habeas corpus, making it possible to detain indefinitely those who were attempting to disrupt the rail lines essential to quickly transport Union soldiers from the Northeast to defend Washington, D.C., on the eve of the Civil War.

In his defense of taking that action without first obtaining the necessary authorization of Congress, President Lincoln asked, "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?"

In the current war on terror, administration lawyers say the president has the power as commander in chief to designate and detain indefinitely those he deems are enemy combatants. They say he does not need special authorization from Congress. For its part, Congress has remained silent on the issue.

No court has yet ruled on the Padilla case, but two courts, a federal district judge in Norfolk and a three-judge appeals court panel in Richmond, have issued preliminary rulings in the Hamdi case. Both appear to be approaching the case from different perspectives.

US Federal District Court Judge Robert Doumar has made no secret of his skepticism about the government's treatment of Hamdi. "We must protect the freedoms of even those who hate us," he writes in an August opinion. "If we fail in this task, we become victims of the precedents we create."

The appeals court panel is taking a more pro-government view, urging that judges grant the traditional deference to the executive branch in matters involving war fighting and foreign affairs. "The federal courts have many strengths, but the conduct of combat operations has been left to others," the panel writes in a preliminary ruling.

The appeals court adds, "Any judicial inquiry into Hamdi's status as an alleged enemy combatant in Afghanistan must reflect a recognition that the government has no more profound responsibility than the protection of Americans, both military and civilian, against additional unprovoked attacks."

Legal analysts say the ultimate resolution of the issue will have wide implications for justice.

"Do we end up with a legal regime that totally sacrifices judicial protection of individual rights because the courts are too nervous about interfering with the war on terrorism?" asks Michael Ramsey, professor at the University of San Diego School of Law.

"On the other hand, there is a danger that judges who are insulated from concerns of national security have become so used to adjudicating individual rights in aggressive ways (in routine criminal cases) that they may not appreciate that the war on terrorism is a totally different situation."

Mr. Ramsey adds, "What is at stake is the ability of the courts to steer a middle course between total abdication and total business as usual under peacetime."