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Case tests limits of holding citizens in military prison

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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 citizen?

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 men.

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 crisis.

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.

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