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Terror trials test U.S. legal foundation

Jose Padilla, a U.S. citizen, has been labeled an
Jose Padilla, a U.S. citizen, has been labeled an "enemy combatant," a designation his lawyers are challenging in court.

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(CNN) -- Some of the most significant battles in the U.S.-led international war on terrorism will be fought in the nation's courts.

The importance will extend beyond who is jailed, tried and possibly convicted of terrorist acts and plots. Legal concepts will be determined -- which rules of law apply to suspects? Who may be detained without being charged or allowed access to attorneys?

Four cases show the apparent situational approach federal prosecutors are using and the questions facing the Bush administration from courts and lawyers.

Two cases, those of Yasser Esam Hamdi and Jose Padilla, two U.S. citizens whose detentions are being challenged in court, will likely determine whether the U.S. Justice Department can indefinitely detain terrorist suspects without trials and without lawyers.

Concerns over 'enemy combatant'

President Bush faces resistance to his assertion that the executive branch may designate certain U.S. citizens "enemy combatants," a classification that allows prosecutors to detain a person indefinitely without charging him or her with a crime or permitting access to an attorney.

Yasser Esam Hamdi, center, was captured in Afghanistan and declared an
Yasser Esam Hamdi, center, was captured in Afghanistan and declared an "enemy combatant." Hamdi was born in the United States of Saudi parents.

Two detainees whose cases have been criticized by civil rights and attorneys' groups are being held in U.S. military brigs: Esam Hamdi, who was born in the United States of Saudi parents and was captured in Afghanistan, and Jose Padilla, a Brooklyn-born Puerto Rican who converted to militant Islam after spending time in gangs. Padilla was arrested by the FBI in Chicago's O'Hare airport this past spring, suspected of being part of an al Qaeda plot to use a radiological bomb in the United States.

The Louisiana-born Hamdi was captured as a member of the Taliban army with, authorities say, an AK-47 in his possession. Hamdi, 21, initially was sent to a makeshift prison at the U.S. Navy base in Guantanamo Bay, Cuba. He was later transferred to a Navy brig in Norfolk, Virginia, after he revealed he was a U.S. citizen.

In August, a U.S. District Court judge ordered that Hamdi be given access to a lawyer and that the government release the information it has on him. But a federal appeals court in Richmond overturned that decision.

Padilla, meanwhile, is being held in solitary confinement at a brig in South Carolina that has been set up to house both U.S. and non-U.S. citizens designated as enemy combatants.

On June 9, President Bush declared Padilla an enemy combatant.

U.S. cites WWII precedents

Noting the Padilla case, an American Bar Association task force in August criticized the administration for not allowing U.S. citizens jailed as enemy combatants to go to court and consult a lawyer.

The courts should have no role in reviewing these designations, Bush administration lawyers have argued, because they are inherently military decisions, which the executive branch is uniquely qualified -- and empowered by the Constitution -- to make.

Justice Department lawyers cite two World War II-era legal precedents for indefinite detention. One case involves eight German saboteurs --- one of whom contended he was a U.S. citizen --- who were arrested after crossing the Atlantic Ocean in submarines, landing on U.S. soil and burying their uniforms and bomb-making devices in the sand.

In 1942, the U.S. Supreme Court ruled that the detainees were not entitled to the due process rights afforded criminal defendants, regardless of whether they were U.S. citizens.

In 1946, the federal appeals court in San Francisco arrived at a similar conclusion in the case of an Italian-American captured while fighting with Mussolini's troops in Sicily. He was transferred to the United States and held indefinitely until the war ended.

Two who were charged and tried

Zacarias Moussaoui
Zacarias Moussaoui

Meanwhile, a French national of Moroccan descent is enjoying many of the constitutional rights legal analysts say Hamdi and Padilla have been denied.

The trial of Zacarias Moussaoui, the only person publicly charged in the United States in connection to the September 11 terror attacks, is expected to begin in January.

Moussaoui has been given access to attorneys, although he has rejected them and says he will defend himself. He has been allowed to file more than 100 motions.

Prosecutors say Moussaoui underwent paramilitary training at al Qaeda camps in Afghanistan in 1998 and received money wired last August from the hijacking cell in Hamburg, Germany, where three of the hijackers -- including suspected September 11 ringleader Mohammed Atta -- lived.

Moussaoui was arrested in August 2001 after arousing suspicion at a U.S. flight school, and German prosecutors say the money from Hamburg paid for Moussaoui's flight lessons.

Four of the six charges against Moussaoui carry a possible death sentence, a possibility that has complicated the case for federal prosecutors. In August, Germany said it would withhold evidence against Moussaoui until U.S. prosecutors promise not to seek the death penalty.

Moussaoui's case has wound its way through the U.S. criminal justice system the way the case of John Walker Lindh did earlier this year.

Walker Lindh during his interview with CNN shortly after he was captured in early December 2001 near Mazar-e Sharif, Afghanistan.
Walker Lindh during his interview with CNN shortly after he was captured in early December 2001 near Mazar-e Sharif, Afghanistan.

Lindh was taken into custody along with other Taliban fighters in northern Afghanistan last December. He was identified as a U.S. citizen after a bloody prison uprising in which a CIA officer, Johnny Michael Spann, was killed.

In July, Lindh, 21, pleaded guilty to aiding the Taliban and possessing explosives in carrying out a crime.

Several government agencies are interviewing him as part of a plea agreement. He would receive a maximum 20-year prison term if officials are satisfied with his cooperation and the judge approves the deal at an October 4 sentencing proceeding.

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