In the criminal justice world, that's one of the benefits of ensuring that defendants do have counsel -- access to counsel ensures that defendants know they have rights, that they do not have to incriminate themselves, that they are not dependent entirely on the favor of their jailers. But in the cases of Jose Padilla and Yaser Hamdi, these anti-coercive principles have been turned upside down.

In an extraordinary document the government has filed in Hamdi's case, the acting commander of the U.S. military facilities at Guantánamo Bay says that military interrogators are working to instill in their subjects feelings of "dependency and trust" that will compel them to volunteer damning information. U.S. Army Col. Donald Woolfolk explains in his declaration: "Disruption of the interrogation environment, such as through access to a detainee by counsel, undermines this interrogation dynamic."

But the central question in the Padilla and Hamdi cases isn't whether they have the right to counsel; it's whether the government has the right to hold them at all in the legal never-never land it has created.

For the Bush White House, that power is self-evident. In briefs filed with the Supreme Court, Solicitor General Olson -- whose wife, conservative commentator Barbara Olson, was killed on 9/11 -- argues that the president's constitutional authority as commander in chief grants him the "inherent" power to hold even U.S. citizens as enemy combatants. "It is well-settled that the President's war powers include the authority to capture and detain enemy combatants in wartime, at least for the duration of the conflict," Olson argues in the Hamdi case.

Deborah Pearlstein of Human Rights First (formerly the Lawyers Committee for Human Rights) says the government could clearly bring criminal charges against Padilla if it wished to do so. That might be more difficult with Hamdi because he was captured abroad, although the government did use the criminal justice system to prosecute John Walker Lindh, another U.S. citizen captured in Afghanistan. But even if the government could not prosecute Hamdi criminally, it could hold him as a prisoner of war.

But if the government were to hold Padilla or Hamdi as prisoners of war or criminal defendants, it would have to provide them the rights such a status would require. The Geneva Convention provides protections for POWs. The U.S. Constitution protects criminal defendants. The government may fear that bringing criminal charges against Padilla would require it to make captured al-Qaida members available as witnesses in court, thereby limiting their future usefulness as informants in the war on terror. Or the government may simply fear that it lacks the facts to win a conviction against Padilla in a criminal case, with its "beyond a reasonable doubt" standard of proof. By declaring Padilla and Hamdi "enemy combatants" the government has created a category of detainee for which it can claim there is no instantly applicable set of legal rules.

"The term 'enemy combatant' doesn't appear in any of the controlling bodies of law we have, doesn't appear in the U.S. Constitution, doesn't appear in any applicable statute or the Geneva Convention," Pearlstein said. "As soon as you say 'enemy combatant,' you need to explain what you mean because there's no generally accepted definition."

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