http://www.nytimes.com/2002/06/11/national/11LEGA.html?ex=1024814880&ei=1&en=636787ae4853c2c2

A Host of Legal Questions on U.S. Action in Bomb Case

June 11, 2002
By ADAM LIPTAK

For a nation still finding its way in the fight against
terrorism, the case of Jose Padilla, also known as Abdullah
al-Muhajir, poses a host of legal questions and
contradictions.

Mr. Padilla, who is accused of planning to explode a
radioactive device, is an American citizen. He has been in
custody since May 8 but has not been charged with a crime.
He is, instead, being held as an "enemy combatant."

While the government cites a 1942 Supreme Court precedent
on military tribunals to justify his detention, the
military tribunals currently authorized explicitly exclude
Americans. All this leads some legal experts to fear that
Mr. Padilla's detention by the military is a pretext to
keep him isolated indefinitely.

The Supreme Court case involved Nazi saboteurs who arrived
by submarine in New York and Florida in June 1942, carrying
bombs, incendiary devices, maps and cash. One of them,
Herbert Hans Haupt, claimed American citizenship.

The Supreme Court, which heard a challenge to the military
tribunal convened to try the men, said that made no
difference.

"Citizens who associate themselves with the military arm of
the enemy government, and with its aid, guidance and
direction enter this country bent on hostile acts, are
enemy belligerents," the justices wrote in a unanimous
decision.

All eight men were convicted. Mr. Haupt and five others
were executed only two months after they were captured.

The case suggests that the government is free to try Mr.
Padilla before a military tribunal, said Ruth Wedgwood, a
law professor at Yale.

"If you go to war against your country, you do not have
rights to a jury trial," Professor Wedgwood said. "And the
answer to the practical question is that we are at war."

But the regulations governing military tribunals issued in
November do not apply to citizens.

Eugene R. Fidell, the president of the National Institute
of Military Justice, said this reflected both a failure of
imagination by the drafters of the regulations and an
assessment of what the nation would find politically
palatable.

"What everyone thought was extremely improbable turns out
not to be improbable," Mr. Fidell said, referring to the
possibility that Americans would be allied with Al Qaeda.
Moreover, he said, "reviving a kind of tribunal that hadn't
been used in half a century was quite a lot to bite off in
the first place."

Experts say there is little question that the government
has the authority to revise the regulations and try Mr.
Padilla before military tribunals under the 1942 decision.
In the meantime, though, the decision to allow the military
to hold him is controversial.

"The decision to detain him indefinitely under this new
category of enemy combatant is intriguing," said Laurence
H. Tribe, a law professor at Harvard. "It is a source of
concern, but the constitutional question it presents is
deeply perplexing, given that the Constitution is not a
suicide pact."

Professor's Tribe's reference to a suicide pact was an echo
of a similar sentiment in a 1949 dissent by Justice Robert
Jackson of the Supreme Court. Both men meant that the
protection of liberty cannot be at the expense of the
nation's security.

Still, some lawyers were wary of the government's actions.


Harold Hongju Koh, a law professor at Yale, said, "If
calling people enemy combatants is another way of holding
American citizens indefinitely, it's extremely troubling.
If they can charge him with a crime, they should try him."

Until Sunday, when the Justice Department transferred Mr.
Padilla to Defense Department custody, he was held as a
material witness in New York. He was transferred to a Navy
jail in Charleston, S.C.

The move may have been related to a recent decision by a
federal judge in New York in a separate case. The judge,
Shira A. Scheindlin, held that the material witness law
cannot be used to hold people indefinitely in criminal
investigations.

"Relying on the material witness statute to detain people
who are presumed innocent under our Constitution in order
to prevent potential crimes is an illegitimate use of the
statute," Judge Scheindlin wrote.

People charged with crimes may be held for trial, of
course, but the government may not be prepared to charge
Mr. Padilla and may be uncomfortable with the disclosures
it would have to make to him and at a trial if it charged
him with a crime. It also may be uncomfortable permitting
him to communicate with a defense team.

In its case against John Walker Lindh, an American citizen
who has been charged with conspiring to kill Americans, the
government has been willing to take those risks. Mr. Lindh
is to be tried in federal court in Virginia.

Professor Koh said, "Lack of hard evidence or unwillingness
to recognize that Padilla has the legal rights afforded to
other American criminal defendants accused of plotting mass
killings do not strike me as compelling reasons to label
him an enemy combatant."

Peter J. Spiro, a law professor at Hofstra University, said
the government might have an ulterior motive. "I think they
are trying to buy incommunicado detention with the enemy
combatant designation, that is, away from lawyers and
media," Professor Spiro said.

A second man claiming American citizenship, Yasser Esam
Hamdi, is also being held by the military as an enemy
combatant. The government is appealing a decision by a
federal judge that would give Mr. Hamdi access to a lawyer.


Military detentions raise hard questions, Professor
Wedgwood said.

"What is the standard of information, evidence or proof to
determine who is a combatant?" Professor Wedgwood asked.
"How do you certify someone into the system?"
Copyright 2002 The New York Times Company