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Wednesday, 12 June, 2002, 12:16 GMT 13:16 UK
Q&A: Rights versus security
Jose Padilla (also known as Abdullah al-Muhajir), a US citizen alleged to have links with the al-Qaeda network, is being held as an enemy combatant. He can be imprisoned without any case being brought against him until the end of America's declared war on terrorism.

His lawyer has asked for his release saying his detention is unconstitutional. BBC News Online's world affairs correspondent Paul Reynolds looks at the legal aspects of the case.

Why is Jose Padilla being held by the US military?

The detention of Jose Padilla, a US citizen, has raised constitutional issues which might go right up to the US Supreme Court for decision.

The key question is whether he can be removed from the civilian system with all its safeguards and be subject to military rules which are much looser.

Mr Padilla is being held on the grounds that he is, as the US Attorney General put it, an "enemy combatant". In theory, his detention could be indefinite.

Mr Ashcroft said there was legal authority "under the laws of war and clear Supreme Court precedent, which establishes that the military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts".

The Supreme Court precedent he refers to dates from the Quirin case in 1942. Quirin and seven other German saboteurs were landed on beaches on Long Island and in Florida by submarine. All were arrested and handed over to the military. The court held that they were "unlawful combatants" who had entered the country secretly like spies.

The court stated: "All citizens of nations at war with the United States or who give obedience to or act under the direction of any such nation shall be subject to the law of war and to the jurisdiction of military tribunals."

The government is arguing that, even if not a citizen of a country at war with the United States, he has given his "obedience" to something equivalent - al-Qaeda.

The court defended the right of the president "in time of war and of grave national danger" to order the eight to be tried by military tribunals. They were duly hanged.

This is the legal basis on which Mr Padilla is being held.

What is his lawyer's legal challenge?

The lawyer, Donna Newman, has asked a Federal Court in New York for a writ of habeas corpus, (Latin for "you should have the body"). This is the old English common law device under which somebody being held in detention has to be produced and released.

It basically defends the right of a prisoner not to be held without charge or reason.

Ms Newman told reporters at the court that Mr Padilla's detention was a "constitutional concern for everybody." She said: "A person is being detained on information the value of which, the credibility of which and the reliability of which, we don't know."

She has set the ball rolling for a legal battle.

Why doesn't the government charge him?

It is not clear but there are three theories.

Professor Michael Byers, of Duke University Law School, North Carolina, told BBC News Online that either it did not have enough evidence or wanted to avoid giving sensitive information in court.

But this could be a device simply to hold him.

The US Defence Secretary Donald Rumsfeld typically spoke bluntly when he declared that the government was not interested in charging or punishing him but simply in finding out "what in the world he knows."

Under military law, he can be questioned more freely, though he appears not to be co-operating.

Why are other terror suspects being treated differently?

Charges have been laid against another US citizen, John Walker Lindh, who was captured in Afghanistan. He is accused of conspiracy to kill Americans abroad, a federal charge which carries the death penalty.

Presumably in his case, the government thinks it has enough evidence for a civilian trial.

A French citizen of Moroccan descent, Zacarias Moussaoui, has been charged with conspiring to carry out the 11 September attacks and also faces the death penalty.

Again, in his case, the authorities regard the evidence as strong enough for a court.

What does this say about the attitude of the US government?

It represents a change of policy. When Taleban and al-Qaeda prisoners were being transferred to Guantanamo Bay in Cuba and were declared to be "unlawful combatants" and subject to military tribunals, it was said that US citizens would be exempt. They no longer are.

The fact that Mr Padilla is in military custody shows that the US Government is willing to bypass the normal constitutional safeguards for an individual, even a US citizen, in favour of wider safeguards for the public.

It is the old argument about the balance between the rights of one to justice and the rights of many to security.

It is not unusual in government. The British Government did it during its war with the IRA.

And in the United States, the legal arguments will be pressed hard.


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