When Is it Right to Lock Up Americans?

U.S. military officials say the "Cajun Taliban," locked in the brig at the Norfolk Naval Station, was captured in Afghanistan and admitted going there to help the Taliban.

Therefore, the Pentagon designated him an "enemy combatant" — which the government claims allows it to hold Louisiana-born Yasser Hamdi indefinitely without access to a lawyer.

The White House argues that the fight against terrorism, like any other war, gives the government wide leeway to lock up, with almost no legal protections, all those it designates enemy combatants — even American citizens.

However, Hamdi's lawyer, though not allowed to see his client, argues Hamdi's apparent U.S. citizenship entitles him to challenge his detention in court, among other basic legal rights.

As a federal judge and the Bush administration face off over how Hamdi's case should proceed, legal scholars are debating the issue of whether American citizens can be locked up in limbo, without legal rights or outside contact.

"It's unprecedented, in our experience," says Stephen Saltzburg of George Washington University, who is on a team of lawyers that has studied the issue for the American Bar Association. "One of the fundamental assumptions that Americans have operated on is that people will not be detained without having some access to courts."

POWs vs. Enemy Combatants

Once, it was pretty straightforward: Where there was a war, there would be prisoners of war. You knew them by their uniforms. You knew the rules about how to treat them. They got mail. They got Red Cross visits. They did not get to argue their status in court.

Now, President Bush has said, "The single most important priority is to protect the homeland now in America [because] we're at war."

The choice of words might seem right, because the enemy launched a sneak attack — and the United States launched a counterattack, captured enemy fighters by the hundreds and still is holding many in a detention center at the U.S. Navy base at Guantanamo Bay, Cuba.

Nevertheless, the current detainees are not prisoners of war, many say.

Congress has not made any declaration of war, so a lot of the rules that govern how war is waged don't necessarily kick in.

If war had been declared, the United States still could argue the detainees do not deserve POW status because they were never part of a uniformed army answerable to a recognizable state.

Inconsistent Enforcement

The government says that makes them "unlawful enemy combatants," a category for which there are no clear rules. And so, as it has in so many ways in dealing with the world after Sept.11, the government has been improvising the rules, and not all that consistently.

John Walker Lindh, for example, an American captured with the Taliban in Afghanistan, was accorded the legal rights of a U.S. citizen charged with a crime. That meant lawyers, and a trial. He has pleaded guilty and agreed to a sentence of 20 years.

Zacarias Moussaoui is not an American, but he was arrested in the United States, accused of being part of the Sept. 11 plot. He also gets a trial by jury, with legal representation if he wants it, although he has opted to defend himself.

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