In 2002 Jose Padilla, a U.S. citizen, was arrested on U.S. soil as he returned from Pakistan. The U.S. government says he is an enemy combatant, part of the al-Qaida terrorist organization. He is being held indefinitely in a military prison.
His case recently reached federal court. His lawyers are challenging the government's assertion that a U.S. Citizen arrested on U.S. soil can be held and treated as a war prisoner. Recently a federal judge has given the Bush administration until April 14th to either charge or release Mr. Padilla.
Depending on whom you talk to, what happens to Jose Padilla could potentially limit individual freedom for all citizens or make the U.S. more vulnerable to terrorist attacks.
Jose Padilla was arrested in the O'Hare international airport in the Midwestern city of Chicago. The U.S. government said he had been in an al-Qaida camp in Afghanistan undergoing weapons and explosives training. They apprehended him, they said, before he could follow through on a plan to detonate a radioactive "dirty bomb" within the United States.
Although he is a U.S. citizen, Jose Padilla was designated an "enemy combatant" and sent to a military prison where he remains today. No criminal charges were filed. No trial has been held.
"The Padilla case represents the most important civil liberties issue that has come up since the terrorist attacks of September eleventh," says constitutional expert Timothy Lynch .
Mr. Lynch is with the CATO Institute and he filed a brief in federal court on behalf of Mr. Padilla, saying the government is abusing its wartime powers.
"The president has been asserting a very sweeping theory of presidential power. He has said that the president can basically designate any person, it doesn't matter if the person is an American citizen or not, it does not matter if the person is on U.S. soil or is overseas. Once the president decides that somebody is an enemy combatant, the president's lawyers argue that the person can be arrested and then held at a military facility incommunicado, depriving him of access to lawyers and access to our civilian court system," says Mr. Lynch.
"Very clearly we're in a war situation right now and the right of self-preservation is the most important duty of any government," says Richard Samp with the Washington Legal Foundation.
Mr. Samp filed a brief in federal court supporting the government's position, saying that detaining enemy combatants during wartime is nothing new.
"At the beginning of World War Two nobody knew how long that war might continue. Yet we never decided to allow German POWs to go free simply because they might be serving an indefinite sentence. At some point the war will be over. It will not go on forever. More importantly I think that the government has shown really key restraint," says Mr. Samp.
But civil liberty advocates say the law is on their side.
John Walker Lindh, a U.S. citizen who was captured on the field of battle in Afghanistan, was brought to a criminal court, not a military tribunal. He was convicted of assisting the Taleban and carrying weapons and explosives, and sentenced to twenty years in prison.
Yaser Hamdi, an American-born Saudi, was also captured in Afghanistan, and spent three years in detention. But the government released and sent him back to Saudi Arabia when the U.S. Supreme Court ruled that his case must be tried in court. Now a federal court has given the government forty-five days to charge or release Jose Padilla.
"This theory that the entire United States is like a battleground in the war on terror where the president and the secretary of defense can designate anybody and hold them without access to lawyers, that's too is sweeping. It goes too far," says Mr. Lynch.
Richard Samp says the government will appeal this court decision saying it must take preemptive action to prevent future terrorist attacks.
"It has always been assumed that individuals in society who might have a criminal propensity are unlikely to be able to cause so much damage before they are arrested that we are willing to only charge them after they have committed a crime. In the case of somebody who is an avowed member of a terrorist group, who has the capability and the will to do tremendous damage to society, that's not the way we can afford to act and that's not the way we have ever acted throughout history," says Mr. Samp.
Both sides expect this case to eventually go before the Supreme Court, which in effect will be asked to find a balance between freedom and security in the war on terror.