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In the vast majority of terrorism cases, judges have sided with the government against the objections of prisoners or their counsel. But there are some notable exceptions, including one case that could undercut some of the government's central legal aims. In March two men, Irfan Kamran, 32, and Sajjad Nasser, 28, were held in prison, charged with harboring an illegal immigrant, while the FBI tried to determine whether they had links to al-Qaeda. Kamran, a naturalized American citizen, and Nasser, a Pakistani, are cousins who had been living legally in the U.S. for years but returned occasionally to their native country. The government contends that in the summer of 2001 Nasser attended a training camp in Pakistan run by the Army of Muhammad, a group the U.S. believes is linked to al-Qaeda. Nasser's lawyer admits that he spent several days there but says he left after he realized it was too strenuous. He also insists that the Army of Muhammad is not aimed at the U.S. but is a militia devoted to ousting India from Kashmir, territory that Pakistan also claims.
As for Kamran, prosecutors say he told a "confidential source" that he planned to join al-Qaeda and fight the U.S. Kamran's lawyer denies that, saying the FBI claim rests upon a witness it refuses to identify. On April 8, Federal Judge Lewis T. Babcock ordered Kamran's and Nasser's release, ruling that the government had failed to show that they were dangerous. At that point, prosecutors successfully moved to detain Nasser again by hitting him with another immigration charge.
A trial is expected next month. It might help answer the question of whether the government can use secret testimony in cases of national security or whether such a tactic is too great a danger to constitutional protections.
--WHEN CITIZENS ARE BRANDED THE ENEMY
The post-9/11 episode that worries civil libertarians the most involves dirty-bomb suspect Jose Padilla, an American citizen who allegedly met with senior al-Qaeda operatives in a plot to detonate a radiological device somewhere in the U.S. Arrested last year at Chicago's O'Hare International Airport, Padilla was classified as an enemy combatant and sent to a naval prison in South Carolina, where he has been denied access to a lawyer. According to government filings, Padilla has been undergoing months of interrogation that could be compromised if lawyers were allowed into the process.
A federal judge in Manhattan has ruled that Padilla must be allowed to meet with his lawyers in order to challenge his enemy-combatant status. But the government maintains that no court has the authority to review that classification. Federal prosecutors have taken a similar position in the case of Yaser Esam Hamdi, a Louisiana-born man who came into U.S. custody after he was captured in Afghanistan, allegedly fighting for the Taliban. He has been declared an enemy combatant as well, held in a Navy prison in Virginia and prevented from seeing attorneys.