Detention of a Citizen Questioned

The case of Jose Padilla, the Brooklyn native now known as Abdullah al Muhajir and the accused “dirty” bomb plotter, poses one of the great unanswered questions in the law: Can the government arrest and hold indefinitely an American citizen without charging him with a crime?

Typically, if the government arrests someone, it must bring criminal charges against him and give him a lawyer and a public trial.

But wartime is different. Captured soldiers can be held until the war ends. There are no charges or trials.

Bush administration lawyers want to import the law of war into the homeland fight against terrorism. And they want to hold Padilla indefinitely as an “enemy belligerent,” not as an accused criminal. They plan to do so even though he is a U.S. citizen who was arrested in Chicago.

Not surprisingly, this has set off considerable controversy among lawyers and legal scholars.

Many of them dispute whether the Constitution gives the president and his agents the power to hold a citizen in secret.

“This seems to me the classic case for habeas corpus. They don’t get to say, ‘This is a bad guy, and we can do with him what we want,’ ” said Georgetown University law professor Mark Tushnet, referring to administration officials.

The right to habeas corpus--the Latin phrase for “you have the body”--came from old English law. The doctrine gave people who were thrown into the king’s dungeons a right to be brought before a judge.

The U.S. Constitution incorporated this idea, saying the right to habeas corpus “shall not be suspended,” except in cases of rebellion or an invasion.

Tushnet said the principle of habeas corpus means that every person has a right to his day in court.

“It means, for example, the Army can’t come to your house, take you away and lock you up. That’s the issue this case raises. The point of habeas corpus is that it tests the legality of the detention,” he said.

Administration lawyers agree that Padilla enjoys the right to habeas corpus because he is a U.S. citizen being detained by the government

But the White House and Justice Department also believe that in such a hearing, the federal courts will uphold the government’s power to hold Padilla as an enemy combatant. Prosecutors must show he was actively working with Al Qaeda terrorists and against the United States.

Under this theory, the government need not charge Padilla with a specific crime or convict him in a trial. Its prosecutors need only convince a judge that Padilla was acting as an enemy soldier.

Jack Goldsmith, an international law expert at the University of Chicago, agrees with the administration’s argument.

“I think they can do this, and they are right to do it. Under international law, if a nation captures an enemy belligerent, it can hold him until the end of the war, and without a trial,” he said.

Because Padilla is not a regular soldier, wasn’t wearing a uniform and wasn’t part of an organized army, he has no right to the protections afforded a prisoner of war, Goldsmith said.

The Bush legal team relies on the famous World War II case of eight Nazi saboteurs who were captured shortly after they landed on the Atlantic shores of the United States.

They were subjected to a military trial held at the Justice Department, sentenced to death and executed.

The Supreme Court took up their legal claims through a writ of habeas corpus. But the justices ruled for the government and upheld their executions. Two of the Germans were born in the United States, but their claims of citizenship did not spare them.

But critics have noted that this case clearly came in a declared war, unlike today’s fight against terrorism. Ultimately, the federal courts will have to decide whether the administration can invoke wartime law against a citizen arrested at home.

Padilla is now being held without charge in a brig in Charleston, S.C.

A defense lawyer can file a writ of habeas corpus on his behalf to bring his case before a federal judge there.

Lawyer Donna R. Newman of New York, who represented Padilla after his arrest on May 8, accused the government Tuesday of making up the law and ignoring the Constitution.

“My client is a citizen. The last time I looked at the Constitution, he still has constitutional rights: the right to counsel, the right to be charged by a grand jury,” Newman told reporters after a federal court hearing.

Nonetheless, the administration may well fight her claims that Padilla has a right to a lawyer and a right to be charged.

The 6th Amendment guarantee of the right to a lawyer and to be told of specific charges against a citizen applies only to criminal prosecutions. Because no charges have been filed against Padilla, “this is not a criminal case,” another government lawyer said.

Federal investigators want to question Padilla at length, and they do not want interference from a defense lawyer.

For that reason, the administration may resist allowing a lawyer to consult privately with the accused dirty bomb plotter.

On Tuesday, Newman complained that her client was whisked away from New York on Sunday evening without her knowledge.

When she presented papers charging the government with holding her client illegally, the prosecutor replied he did not have the authority to accept her papers on behalf of the Defense Department.

“The government is breaking new ground,” Newman said.

Times staff writer John J. Goldman in New York contributed to this report.