Terror on trial: Citizen detentions in the spotlight

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."

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