Legal Questions on U.S. Action in Bomb Case
…the case of Jose Padilla, also known as Abdullah al-Muhajir, poses a host of legal questions and contradictions.

Mr. Padilla, who is accused of planning to explode a radioactive device, is an American citizen. He has been in custody since May 8 but has not been charged with a crime. He is, instead, being held as an "enemy combatant."

While the government cites a 1942 Supreme Court precedent on military tribunals to justify his detention, the military tribunals currently authorized explicitly exclude Americans. All this leads some legal experts to fear that Mr. Padilla's detention by the military is a pretext to keep him isolated indefinitely.

…the regulations governing military tribunals issued in November do not apply to citizens.

Eugene R. Fidell, the president of the National Institute of Military Justice, said this reflected both a failure of imagination by the drafters of the regulations and an assessment of what the nation would find politically palatable.

"What everyone thought was extremely improbable turns out not to be improbable," Mr. Fidell said, referring to the possibility that Americans would be allied with Al Qaeda. Moreover, he said, "reviving a kind of tribunal that hadn't been used in half a century was quite a lot to bite off in the first place."

Experts say there is little question that the government has the authority to revise the regulations and try Mr. Padilla before military tribunals under the 1942 decision. In the meantime, though, the decision to allow the military to hold him is controversial.

"The decision to detain him indefinitely under this new category of enemy combatant is intriguing," said Laurence H. Tribe, a law professor at Harvard. "It is a source of concern, but the constitutional question it presents is deeply perplexing, given that the Constitution is not a suicide pact."

Professor's Tribe's reference to a suicide pact was an echo of a similar sentiment in a 1949 dissent by Justice Robert Jackson of the Supreme Court. Both men meant that the protection of liberty cannot be at the expense of the nation's security.

Still, some lawyers were wary of the government's actions.

Harold Hongju Koh, a law professor at Yale, said, "If calling people enemy combatants is another way of holding American citizens indefinitely, it's extremely troubling. If they can charge him with a crime, they should try him."
http://www.nytimes.com/2002/06/11/national/11LEGA.html