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.

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