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'Illegal Enemy Combatant' Designation Sparks Legal Controversy

A panel of U.S. appeals court judges in Virginia is struggling with the controversial case of a U.S. citizen captured on the battlefield in Afghanistan and now being held by the government as an illegal enemy combatant. A lawyer for Yaser Hamdi has been trying to gain access to his client, but the government argues that as an illegal enemy combatant he is not entitled to a lawyer or the rights given to a prisoner of war.

After he was captured fighting for the Taleban in Afghanistan last year, the U.S. military discovered that Yaser Hamdi, the son of Saudi parents, was born in the U.S. state of Louisiana and is therefore an American. But unlike, John Walker Lindh, the American who has been convicted of fighting for the Taleban, Mr. Hamdi has not been charged with a specific crime.

The military says Mr. Hamdi is a threat to the United States and is holding him in a Naval brig in Norfolk, Virginia, as an unlawful enemy combatant.

Mr. Hamdi's lawyer asserts his client remains entitled to the same legal protections that the Bill or Rights guarantees all Americans, including the right not to be held indefinitely without charge.

The government maintains his case is not like those of criminal defendants, and that civilian courts have no jurisdiction to intervene in a military detention made for reasons of national security.

Attorney David Rivkin served in the Justice Department during the Reagan and first Bush administrations. "This is not a punitive detention. This is not meant to punish the individual concerned. It is simply meant to ensure that he will not go back and take up arms and join his former colleagues," Mr. Rivkin said.

Mr. Hamdi's public defender, Frank Dunham, maintains the government must show proof that his client is in fact an enemy combatant and allow Mr. Hamdi to defend himself against those charges in court.

"Fundamentally, the problem here is you have an American citizen being held without any process of any kind, without access to a lawyer, without access to the court and without ability to challenge in any way shape or form what the government says about him," Mr. Dunham said.

At least one other American, Jose Padilla, is being held as an enemy combatant as well. He was first detained on suspicion of trying to detonate a so-called radioactive dirty bomb. Former Justice Department Attorney David Rivkin argues there is historic legal precedent for such detentions.

"During World War II, we have a 1942 Supreme Court case of 'Quirin' which in all the eight German saboteurs that were held to be unlawful combatants, and six of them were put to death. The proposition that you can be classified as an enemy combatant even if you are a U.S. citizen is absolutely well settled law, both internationally and as a matter of U.S. constitutional law," he said.

Civil rights advocates have said they are concerned about the possibility that the government could charge anyone it wants with being an unlawful enemy combatant without first having to provide evidence in court to back it up.

In the case of Yaser Hamdi, the executive branch argues that providing such evidence could reveal intelligence harmful to national security. Legal analysts say this issue of whether national security can take precedence over an individual's constitutional right to due process could well end up at the U.S. Supreme Court.