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Dirty bomb suspect has fewer legal rights

'Enemy combatants' may be held till war ends

Jose Padilla

(CNN) -- An American man accused of planning to build and explode a radioactive "dirty" bomb may interest U.S. authorities more for what he knows rather than what he was planning to do.

U.S. Defense Secretary Donald Rumsfeld said Tuesday that Jose Padilla -- being held in a South Carolina military brig, accused of working with al Qaeda against the United States -- -- might never be brought to trial.

"Our interest is not in trying him and punishing him," Rumsfeld told reporters during a stopover in Qatar on his way to India. "Our interest is in finding out what he knows."

The Brooklyn-born Padilla, who goes by the name Abdullah Al Muhajir, has not been charged with any crime, but U.S. officials say he met with senior al Qaeda leaders in Afghanistan and Pakistan before heading to Chicago, where he grew up, for a "reconnaissance" mission.

As a U.S. citizen, Padilla usually would be afforded traditional legal rights such as presumption of innocence until a conviction.

Padilla, however, has been classified an "enemy combatant," or "unlawful combatant." It means that he has fewer legal rights than an ordinary civilian defendant in a criminal case.

Classification arose from Nazi saboteurs

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For example, Padilla may be held indefinitely without being charged until the U.S.-declared war against terrorism ends, said John McGinnis, professor of constitutional law at Northwestern Law School in Chicago.

The designation also allows U.S. authorities to interrogate the suspect in a more aggressive fashion, and restrict his access to an attorney, McGinnis said.

The U.S. Supreme Court defined an "enemy combatant" or "unlawful combatant" in a World War II case called Ex Parte Quirin. In a 1942 decision, the court confirmed the authority of Congress and the president to try Nazi terrorists operating in the United States by military commissions.

The case centered on eight Nazi saboteurs who had crossed the Atlantic in a German submarine: four Nazi operatives landed on Long Island, New York, and another four at Ponte Vedra Beach, Florida. The FBI arrested both groups and turned them over to the military, which promptly tried them.

In the case, the United States was able to execute the saboteurs because they were not deemed to be prisoners of war but unlawful combatants.

"If someone is a soldier, he is under the rules of war and needs to be treated as such," McGinnis said. But "He [Padilla] is not necessarily a prisoner of war. He's an undeclared combatant , a saboteur ... aiming at civilian targets, and outside the protection of the Geneva Convention."

U.S. officials must still supply evidence showing Padilla at least planned to harm U.S. interests, McGinnis said.

Whether Padilla's detention will foretell a future where many Americans are detained indefinitely because of U.S. knowledge of terrorist plans remains to be seen, said Victoria Toensing, ex-Justice official.

"Today, we don't know that because the combat zone is all around us. It's a real new paradigm we find ourselves in."