By Adam Liptak New York Times

For a nation still finding its way in the fight against terrorism, 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 Supreme Court case involved Nazi saboteurs who arrived by submarine in New York and Florida in June 1942, carrying bombs, incendiary devices, maps and cash. One of them, Herbert Hans Haupt, claimed American citizenship.

The Supreme Court, which heard a challenge to the military tribunal convened to try the men, said that made no difference.

"Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents," the justices wrote in a unanimous decision.
All eight men were convicted. Mr. Haupt and five others were executed only two months after they were captured.

The case suggests that the government is free to try Mr. Padilla before a military tribunal, said Ruth Wedgwood, a law professor at Yale.

"If you go to war against your country, you do not have rights to a jury trial," Professor Wedgwood said. "And the answer to the practical question is that we are at war."

But 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."

Until Sunday, when the Justice Department transferred Mr. Padilla to Defense Department custody, he was held as a material witness in New York. He was transferred to a Navy jail in Charleston, S.C.

The move may have been related to a recent decision by a federal judge in New York in a separate case. The judge, Shira A. Scheindlin, held that the material witness law cannot be used to hold people indefinitely in criminal investigations.

"Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes is an illegitimate use of the statute," Judge Scheindlin wrote.

People charged with crimes may be held for trial, of course, but the government may not be prepared to charge Mr. Padilla and may be uncomfortable with the disclosures it would have to make to him and at a trial if it charged him with a crime. It also may be uncomfortable permitting him to communicate with a defense team.

In its case against John Walker Lindh, an American citizen who has been charged with conspiring to kill Americans, the government has been willing to take those risks. Mr. Lindh is to be tried in federal court in Virginia.

Professor Koh said, "Lack of hard evidence or unwillingness to recognize that Padilla has the legal rights afforded to other American criminal defendants accused of plotting mass killings do not strike me as compelling reasons to label him an enemy combatant."

Peter J. Spiro, a law professor at Hofstra University, said the government might have an ulterior motive. "I think they are trying to buy incommunicado detention with the enemy combatant designation, that is, away from lawyers and media," Professor Spiro said.

A second man claiming American citizenship, Yasser Esam Hamdi, is also being held by the military as an enemy combatant. The government is appealing a decision by a federal judge that would give Mr. Hamdi access to a lawyer.

Military detentions raise hard questions, Professor Wedgwood said.

"What is the standard of information, evidence or proof to determine who is a combatant?" Professor Wedgwood asked. "How do you certify someone into the system?"

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