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Do presidents have the right to hold citizens indefinitely?

When Jose Padilla's case came before the US Supreme Court in 2004, the issue was whether the president had constitutional authority to hold without charge an American citizen arrested on US soil. The case was tossed out on a technicality. But on the same day that the Padilla outcome was announced, the court released its decision in a similar case of a US citizen captured on an Afghanistan battlefield.

In Hamdi v. Rumsfeld, a four-justice plurality ruled that the president could hold American citizens as enemy combatants in the US provided they were given a fair hearing to challenge the government's actions.

Justice Antonin Scalia believed this approach was deeply flawed. Although he voted with the majority to dismiss Mr. Padilla's case, Justice Scalia wrote a 27-page dissent in the Hamdi case.

If a citizen takes up arms against the US in a time of war, he or she should be tried for treason, the justice wrote. If fast-developing events prevent such a prosecution, Congress has the power to suspend habeas corpus and other protections of the Constitution temporarily. But the commander in chief's authority alone is not enough to accomplish this, Scalia wrote.

The Founding Fathers distrusted military power permanently at the president's disposal, Scalia said. The Founders wrote a series of safeguards into the Constitution, dividing the power over the military between the executive and legislative branches.

"A view of the Constitution that gives the executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions," Scalia wrote.

Although Scalia's view has not carried the day at the high court, it has sparked intense speculation about what might happen should the justices once again consider Padilla's case. Many high court analysts believe five or more justices would be sympathetic to arguments raised by Padilla's lawyers. But no similar case has arrived at the court.

Should the court address the issue in a definitive way, the answer would produce a constitutional landmark.

The evidence for Padilla's dirty bomb plot

The underlying information about Jose Padilla's alleged dirty-bomb plot came primarily from three individuals, according to a Federal Bureau of Investigation affidavit on file in Mr. Padilla's Miami case. All three were subject to harsh interrogation techniques, and all three have subsequently charged that they were tortured at secret Central Intelligence Agency interrogation sites overseas. They include two of the highest-profile terror suspects in US custody at the US Naval Base at Guantánamo Bay, Cuba – Khalid Sheikh Mohammed and Abu Zubaydah.

• Mr. Mohammed made a public statement at Guantánamo earlier this year claiming to be in charge of "dirty-bomb operations on American soil."

• Mr. Zubaydah reportedly talked about the plot early on in his interrogation.

• The third individual, an Ethiopian refugee to Britain named Binyam Mohammed, does not deny making statements about Padilla and a dirty-bomb plot, according to his lawyer, Clive Stafford Smith. But Mr. Mohammed says the statements were made to get interrogators in Pakistan, Morocco, and Afghanistan to leave him alone. In Morocco, he claims interrogators used a scalpel to make 20 to 30 small cuts on his genitals every three to four weeks for months, Mr. Smith says. "Binyam says he never met Padilla and doesn't know who he is."

• Padilla's statements in the brig are another source of evidence. He admitted making the statements about proposing the plot, but US intelligence reports say he insisted that he never intended to carry out an attack.

• Padilla also provided information about an alleged plot to blow up apartment building by leaving gas stoves on. Unlike the dirty-bomb plot, this kind of crude attack could be within Padilla's capabilities, analysts say. In addition, Padilla is said to have admitted to having contact with senior Al Qaeda leaders, suggesting that even if he wasn't a member of the terror group he was perhaps a trusted associate.

Analysts say that given the interrogation methods used against Padilla and the others, even if US intelligence officials believe the information is reliable, it is unlikely to ever be admissible in an American court.