Uncharted Legal Territory

Jose Padilla's court-appointed lawyer is the first to admit she is in over her head. "I'm no constitutional scholar," says Donna Newman, a defense attorney in private practice. "I need help."

The legal arguments being used against Padilla by the Justice Department are so controversial that Newman will get the help she needs. Experts from the American Civil Liberties Union and the Cato Institute are crying foul over an Administration strategy that puts Padilla at the center of a sobering constitutional question: Can the President label an American citizen an "enemy combatant"--a hostile agent of a foreign foe order the military to hold him indefinitely and prevent him from seeing his lawyers? That's what President Bush has done. Civil libertarians began speaking out last November, when Bush announced that some terrorists would be tried before military tribunals. But Padilla's case gives them their first real chance to take the President to court and test how much wartime power he can properly wield.

Bush's treatment of accused terrorists troubles many legal experts, who say the Administration appears to be making up the rules as it goes along. American Taliban John Walker Lindh and foreign suspects Zacarias Moussaoui and Richard Reid all face federal trial, but Yasser Hamdi, the Louisiana-born Saudi captured last December in Afghanistan, is being held in Norfolk as an enemy combatant. Now Padilla is being held as a combatant as well though the Administration says it has no plans to try him before a tribunal. "The real test case is Padilla," says Duke professor Scott Silliman, who specializes in national-security law. Silliman argues the courts need to lay down rules on how the President decides who is a combatant.

The Administration has justified its moves by citing a 1942 Supreme Court decision that allowed Franklin Roosevelt to try eight German saboteurs in front of a military tribunal. In that case, known as Ex parte Quirin, the justices ruled that the Commander in Chief has the right to try unlawful combatants before a tribunal. But they also ruled that the defendants had a right to appeal their status in federal court. And the decision says nothing about detaining combatants indefinitely or denying them counsel. "To use Quirin to justify indefinite detention of Americans is to extend it far beyond the circumstances in which it was decided," says Silliman.

Federal prosecutors admit there are no firm rules on detaining combatants. "We are in uncharted legal territory here," says one. And some experts believe security trumps due process. "If we err too far on the side of civil liberties, an awful lot of Americans could lose their lives," says Robert Turner, a University of Virginia law professor.

Newman's next step will be to file a petition in federal court in South Carolina. Justice lawyers are preparing their counterarguments. Both sides expect new precedent to be set, possibly by the Supreme Court.