Alleged Bomb Plotter to Be Held Indefinitely, Pentagon Says

The Pentagon plans to hold an alleged Al Qaeda bomb plotter indefinitely without charges despite his U.S. citizenship, citing two World War II court decisions that allowed Americans to be held as prisoners of war or charged in military courts.

The Defense Department is holding Jose Padilla, identified Monday as the planner of a radioactive “dirty” bomb attack, as an “intelligence source” for questioning about the Al Qaeda terrorist network, senior Pentagon spokesman Richard McGraw said.

Padilla is the third U.S. citizen to be arrested as a suspected Al Qaeda terrorist. He could eventually be prosecuted in a military court-martial or in U.S. criminal courts, McGraw said.

But for now, by declaring Padilla an “enemy combatant” and transferring him to the custody of the Defense Department, authorities maintain they can hold him without charges indefinitely, and without a lawyer, while interrogating him.

“We have acted with legal authority both under the laws of war and clear Supreme Court precedent, which establish that the military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts,” Atty. Gen. John Ashcroft said.

Padilla was arrested May 8 and held without charge in the custody of the Justice Department until Monday, when Ashcroft disclosed his arrest and he was transferred to Pentagon control and sent to a naval brig in Charleston, S.C.

The process leaves Padilla, born in Brooklyn, without even the civil protections enjoyed by accused Sept. 11 conspirator Zacarias Moussaoui, a French citizen of Moroccan descent facing trial in Alexandria, Va. As a legal strategy, “it’s beautiful,” if questionable, said Michael F. Noone, a law professor at Catholic University in Washington.

“It’s selective as a legal rationale. It’s slick, and it’s pushing the envelope,” Noone said. “This means that any U.S. citizen who gets off a plane in O’Hare [International Airport in Chicago] can be apprehended by the feds and told ‘You’re an enemy combatant and you’re going to be tried by court-martial.’ ”

The legal precedents cited by Ashcroft include a 1942 case in which a group of Nazi saboteurs--one a U.S. citizen--were tried by a military tribunal and executed after they arrived via submarine on U.S. soil. In a 1946 case, the U.S. 9th Circuit Court of Appeals ruled that an Italian-American named Gaetano Territo was legally captured while wearing an Italian uniform in Sicily and held as a prisoner of war and court-martialed in the United States.

Those precedents allow the Pentagon to continue holding Padilla for questioning indefinitely and still try him later in a court-martial or transfer him back to civil authorities for trial, McGraw said.

Civil Rights vs. Security

The Padilla case is the latest since Sept. 11 to pit civil rights against the mandate for national security. Hundreds of foreign citizens have been detained in this country without bail for months on visa or related violations, while hundreds of enemy soldiers captured in Afghanistan are being held as “detainees” without the legal protections afforded prisoners of war.

Even if the tactic used in the Padilla case is found to be constitutional, critics warn against creating a legal “twilight status.” Harvard law professor Laurence Tribe said he hopes a federal court will review the case “to make sure that this kind of military detention does not become a black hole into which American citizens can be sucked without anyone looking over the commander in chief’s shoulder.”

Padilla’s citizenship means he could not be tried before the military tribunals established by President Bush to prosecute enemy fighters from the war in Afghanistan.

But he could be tried at court-martial, before military judges and with a military attorney, although he likely would be allowed to hire his own lawyer as an advisor.

Californian John Walker Lindh now faces criminal charges in U.S. District Court after being held in military custody without a charge for months.

A third man with U.S. citizenship is being held in a Navy brig in Norfolk, Va., after being captured in Afghanistan while fighting with the Taliban. Yasser Esam Hamdi was held with other detainees at the U.S. naval base at Guantanamo Bay, Cuba, then moved to Norfolk.

He was born in Louisiana but moved to Saudi Arabia as a child.