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
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
Landmark in US law?
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
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. …