According to U.S. officials, al-Mujahir, originally named Jose Padilla, had met with senior al-Qaeda leaders in Pakistan and Afghanistan to plan attacks in the United States, including the detonation of a radioactive "dirty bomb." Al-Mujahir was detained in Chicago on May 8, and then held in New York as a "material witness." This week he was sent to a military base in South Carolina where the U.S. government is holding him as an "enemy combatant" without charges or access to an attorney.

Human Rights Watch noted the contrast between the government's decision to treat al-Mujahir as an enemy combatant and its decision to prosecute the alleged September 11 "twentieth hijacker," Zacarias Moussaoui, on criminal charges in a federal district court. Both men allegedly came to the United States to carry out acts of violence at the direction of Afghanistan-based al-Qaeda operatives. "The U.S. government apparently wants to be able to question al-Mujahir while holding him incommunicado," said Roth. "But the government's legitimate desire to obtain information about terrorist threats does not entitle the president to assume unlimited powers to place in military custody anyone he identifies as a terrorist."

Human Rights Watch questions the government's contention that international humanitarian law - or the laws of war - permits the president to unilaterally designate al-Mujahir an "enemy combatant" who may be held by the military without charges or access to an attorney. International humanitarian law applies to the international armed conflict in Afghanistan, but it does not apply to any and all members of al-Qaeda regardless of their individual involvement with that conflict. To maintain its designation

of al-Mujahir as an enemy combatant, the U.S. government would need to demonstrate to a civilian court a clear nexus between his activities and the armed conflict with the United States in Afghanistan. If a court determines he is an enemy combatant, then he may be detained without charges for the duration of active hostilities, but not indefinitely.

If suspects are apprehended outside areas of armed conflict and have no direct connection to the conflict, international humanitarian law is inapplicable. Instead, the protections of international human rights law apply. In the case of a U.S. citizen detained in the United States, the protections of U.S. constitutional law apply as well. These protections include the rights to be formally charged and permitted access to counsel.

"To permit a government that is at war in one part of the world to place people in military custody without charges elsewhere in the world without demonstrating participation in the armed conflict would create a gaping and dangerous loophole to basic human rights guarantees," Roth said. "Being an accused terrorist is not synonymous with being an enemy combatant. Otherwise, the president could detain and hold anyone without charges simply by labeling him a member of al-Qaeda."