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.

On the other hand, there is Hamdi's case. He was born in Louisiana to Saudi Arabian parents, raised in Saudi Arabia and captured in Afghanistan. When the Pentagon learned he was possibly an American citizen, they flew him to a Navy base in Virginia and labeled him an enemy combatant. He's been charged with no crime, and has been prevented from seeing a lawyer.

The same treatment has been given to Jose Padilla, an American citizen arrested in Chicago in May, on suspicion he was trying to help construct a radioactive bomb. Like Hamdi, he has not been charged with a crime, and the government calls him, too, an enemy combatant.

‘Not the American Way’

Padilla's case, in particular, alarms Lawrence Tribe, a professor of constitutional law at Harvard Law School who testified late last year before the Senate on the issue of military tribunals.

"It bothers me that the executive branch is taking the amazing position that, just on the president's say so, any American citizen can be picked up not just in Afghanistan but at O'Hare Airport or on the streets of any city in this country and locked up without access to a lawyer or court just because the government says he's connected somehow with the Taliban or with al Qaeda," Tribe says. "That's not the American way. It's not the constitutional way. Even during wartime."

Because they are not POWs, Hamdi and Padilla don't get protection under the Geneva Convention. Because they are not charged with crimes, they don't get the rights of the U.S. legal process. Because they are enemy combatants, they don't have any way to get themselves heard — not to their families, not to a court, not to anyone except the military that's holding them.

But some argue that if Hamdi and Padilla are U.S. citizens they've got rights no matter what they did or did not do.

"Suppose that we've got the wrong Padilla," Saltzburg says. "The administration's position seems to be, 'We should not give him immediate access to courts and we can deny him access to a lawyer.' But, the problem is we need to find a way to permit him … to come forward and say, 'You've got the wrong Jose Padilla.'"

Rights Could Interfere With War

But the other side argues that in the midst of a conflict that some call a war, even if it's not a war like any the United States has fought before, commanders in the field cannot be hampered by a judge in a U.S. courtroom.

"I think the administration made a mistake in bringing Lindh and bringing Hamdi to the United States," says Jan Ting, a professor of law at Temple University who worked for three years as an assistant commissioner at the Immigration and Naturalization Service.

"They should have been treated exactly like all other enemy belligerents and detained either in Afghanistan, or in U.S. The reason that we detain these individuals, even without bringing criminal charges, is because we don't want them going back out onto the battlefield and committing additional belligerent acts against us."

Some add that the military might want to question someone like Hamdi, and it might encounter problems if there's a lawyer in the way. And Doug Kmiec, dean of the law school at Catholic University, notes that lawyers could be used to transfer information from the prisoner that could undermine the war effort.

"What we have here is not criminal behavior," adds Kmiec, who was in the Justice Department during the Reagan administration.

"What we have is the prosecution of war. And in the prosecution of war, it's the president, it's the military, it's the secretary of defense that has access to information, that has to use that information in a way to strengthen our defense and to gain that information through interrogation of those that they capture on the battlefield in ways that we don't associate with the judiciary or we don't associate with the other branches of government."

Historic Precedents

The Bush administration is not the first to argue that, in time of war, some degree of individual civil rights may need to be sacrificed for the common good.

"It happens in times of war and even in times of semi-war, because we've only had declared wars in American history five times," says Michael Beschloss, a presidential historian. "But it's happened when there's a great fear that you might have people among us who might be acting on behalf of an enemy."

The first time was in 1798, when President John Adams at a time of building tension with France signed the Alien and Sedition Acts that were used to silence criticism of the government.

How does history tend to judge the government's behavior in retrospect during these periods when civil liberties perhaps have been reduced somewhat?

"The big question that's asked is, 'Is this an action that was taken to oppose a very real threat, or is this something that was excessive or might even have been done for political purposes?'" Beschloss says.

Wartime, it is argued, makes things different, which happens to be the argument that the Bush administration is making now.

ABCNEWS' Chris Bury contributed to this report.