Case tests limits of holding citizens in military prison

The US Constitution guarantees that Americans have a right to appear before an impartial judge whenever the government attempts to take away their liberty.

But should the so-called "privilege of the writ of habeas corpus" apply in the midst of a war on terrorism in the same way that it has during times of peace? And what if the alleged terrorist is a US citizen?

Those are among the fundamental questions confronting a three-judge federal appeals court panel in Richmond, Va., today as it takes up the case of alleged Taliban soldier Yaser Hamdi. The US-born Saudi is being held incommunicado without charge or access to a lawyer in a military prison in Norfolk, Va.

A second US citizen, Jose Padilla, is being held under similar conditions in a military prison in Charleston, S.C. Mr. Padilla is suspected of plotting with Al Qaeda to detonate a nuclear "dirty bomb" in the US. A habeas petition on his behalf is pending before a federal judge in New York.

Both cases have sparked a heated debate among constitutional law scholars over whether President Bush is abusing his authority as commander in chief by ordering the indefinite detention of the two men.

Both the Hamdi and Padilla cases raise the prospect of a potential landmark in US law because they offer the federal courts – and potentially the US Supreme Court – the opportunity to resolve uncertainties about the judiciary's role in striking the proper balance between civil liberties and national security in times of crisis.

The specific issue in the Hamdi case is to what extent a federal judge may second-guess the government's decision to hold someone as a military prisoner and bypass the criminal-justice system with its checks and balances.

Administration officials defend the Hamdi and Padilla detentions, saying the prisoners are potential sources of valuable intelligence and that such detainees have no legal rights because Mr. Bush has designated them "enemy combatants."

Critics counter that US citizens being detained must be afforded the right to file a habeas petition to force the government to prove the legality of their imprisonment. The only exception, these critics say, would be if Congress acted to suspend the habeas right during a time of national emergency. No such suspension has been authorized, they say.

"There is no necessity to keep Padilla and Hamdi in a military prison without charges," says Donald Rehkopf Jr., a Rochester, N.Y., lawyer who has filed friend-of-the-court briefs in both the Hamdi and Padilla cases on behalf of the National Association of Criminal Defense Lawyers. "If the government can't find some [crime] to charge them with, then they should be out of jail."

Government lawyers say the indefinite detention of Mr. Hamdi and Padilla is a military decision made by Bush in his capacity as commander in chief.

"The military determination at issue in this case directly implicates the national defense ... and falls at the heart of the military's ability to conduct war," writes Paul McNulty in his brief for the government in the Hamdi case. "The judiciary ... lacks institutional competence, experience, and accountability in making such military judgments."

The debate represents a fundamental difference in outlook among constitutional scholars. The administration and its supporters view the Hamdi and Padilla detentions as a form of warfare. Civil libertarians view the open-ended detentions as an executive-branch power grab at the expense of explicit constitutional provisions.

Appeals-court judges at the Richmond court have already twice considered aspects of the Hamdi case. In a preliminary ruling in July, they said in part: "The Supreme Court has shown great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs."

But the judges also said they found the Bush administration's stance on the issue a "sweeping proposition." The court then outlined the proposition in these words: "With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charge or counsel on the government's say-so."

Mr. Rehkopf says that amounts to a de facto declaration of martial law and suspension of the constitutional right to file a habeas petition – without the specific and necessary prior authorization from Congress to take that action.

Government lawyers insist the president is making military decisions necessary to protect the nation from an enemy that respects no law.

• Faye Bowers contributed to this report.