"Before we interviewed detained foreign national Al Qaeda subjects in East Africa in connection with the East African embassy bombings," former FBI Director Louis Freeh told congressional investigators last October, "FBI agents gave them their Miranda rights."

That was in 1998. Times have changed. "Interrogations of detained enemy combatants have [already] helped to thwart an estimated 100 or more attacks against the United States and its interests after September 11, 2001," the Bush administration claimed in January 10 court papers. Filed in the case of suspected "dirty-bomb" plotter Jose Padilla, the court papers said that Padilla himself had been caught thanks to interrogations of other Qaeda suspects.

Those sessions cannot have been gentle. I doubt that they began with Miranda warnings. Does anybody think that "You have the right to remain silent" should have been the first thing U.S. agents said to Khalid Shaikh Mohammed, the Qaeda operations chief seized in Pakistan on March 1? Or that all interrogation should have ceased if he requested a lawyer? If your answer is yes, have you considered that Mohammed-said to be the master planner of many as-yet-unconsummated attacks on America as well as of September 11-may well have information that, if extracted, could save dozens, hundreds, or thousands of lives?

The Constitution not being a suicide pact, it’s clear enough that there should be no Miranda warnings or lawyers for suspected Qaeda terrorists such as Mohammed-not as long as there is a reasonable chance of eliciting information that might help foil future attacks. The same logic holds to some extent even if the suspect is a U.S. citizen, and even if he is seized on U.S. soil, as in the case of the Brooklyn-born Padilla, who was arrested last May after a flight from Pakistan to Chicago.

But cases such as these present very, very hard questions, grounded in the agonizing conflict between the need to squeeze potentially life-saving information out of captured terrorists and fundamental values including legality, decency, and fairness.

What can U.S. interrogators properly do to make such people talk? Scream at them? Blindfold them? Deprive them of sleep? Of edible food? Keep them in bone-chilling cells, stripped naked? Force them to stand or kneel for hours in uncomfortable "stress positions"? Slap them around? Threaten to deliver them to foreign intelligence agents who will break their bones, burn them, or rip out their fingernails? Carry out such threats?

All of these techniques-except the last, the real, unambiguous torture-are privately endorsed as legitimate by U.S. military and intelligence interrogators overseas, according to news reports. And while U.S. officials say that Mohammed and other prisoners are treated "humanely," it has been widely reported that the U.S. sometimes "renders" uncooperative prisoners to foreign intelligence services known to use torture.

This practice would violate the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the Senate ratified in 1994. Unlike the 1949 Geneva Convention regarding prisoners of war, the torture convention protects even terrorists and other "unlawful combatants." But its definition of torture-intentional infliction of "severe pain or suffering, whether physical or mental"-leaves room for interpretation. It’s a good bet that Khalid Shaikh Mohammed has felt some pain. And if that’s the best chance of making him talk, it’s OK by me.

But what if nothing short of unambiguously "severe" pain-torture, that is-seems to have any chance of eliciting Mohammed’s potentially life-saving secrets? Should interrogators be prepared to cross that line? I would say no, in principle. Torture would dehumanize the interrogators and their superiors-up to and including the president-as well as the suspects. It could also lead to routine brutalization of suspected terrorists.

My answer might be different in extreme circumstances, however. Suppose that, right this minute, Mohammed is taunting his interrogators by predicting that within 48 hours his foot soldiers will launch a series of attacks on American targets he has chosen-attacks so catastrophic as to dwarf those of September 11. How hard should his interrogators push him to identify the targets? There is no good answer.

Now consider Padilla. Should he be treated more gently because he is a U.S. citizen? Because he was captured on U.S. soil? I would say yes, because the government could do to any of us whatever it can do to Padilla. Beyond that, he seems a mere foot soldier, much less likely than Mohammed to have potentially life-saving information.

Padilla actually did get Miranda warnings, and a lawyer, when first detained as a material witness. This was not constitutionally required, in my view, except in the sense that any statements elicited without the familiar warnings would probably be inadmissible in a criminal case. The government is not seeking to prosecute Padilla. Rather, it labeled him an "enemy combatant" last June and moved him to a Navy brig for interrogation, citing World War II legal precedents.

Padilla has been held incommunicado ever since, with no access to a lawyer or family members, no hearing before any judge, and no opportunity to tell anybody but his interrogators, "You’ve got the wrong guy. I’m no terrorist." The government is even fighting to reverse a December 4 court order to allow Padilla’s lawyer to meet with him so as to help present his account of the facts. It says that giving Padilla access to a lawyer could wreck his ongoing interrogation. And it claims that it has the power to hold him incommunicado indefinitely, with no chance of ever going before an impartial tribunal to tell his story.

This is too much like tyranny for my taste. No president should ever claim the power to grab anyone, anywhere, at any time, and lock him up forever, with no semblance of due process, simply by labeling him an enemy combatant. And no court should uphold Bush’s claim. The government does make mistakes. Lots of them. And it sometimes lies, as in 1942, when it grossly exaggerated the scanty evidence that Japanese-Americans would act as a fifth column to justify interning 110,000 of them.

How confident can we be that the government will never scoop up Arab-Americans as "enemy combatants" for applauding Palestinian attacks on Israeli settlers in occupied territories or for inflammatory denunciations of Bush’s support for Israel? How could such a person ever clear himself?

It seems unlikely that after nine months of grilling, Padilla will cough up anything new, important, and timely. And if the administration really believes that national security requires incommunicado, uninterrupted, unending interrogation of alleged Qaeda detainees, it should have moved Zacarias Moussaoui from jail to a military brig a long time ago. Moussaoui, the alleged "20th hijacker," is (or was) as promising a prospect for interrogation as Padilla. But because the government chose to prosecute Moussaoui in federal court-seeking the death penalty-he has not been grilled for one second since shortly after his August 2001 arrest on immigration charges.

This is not to doubt the legality or wisdom of handing over certain suspected enemy combatants to the military for detention and interrogation. Nor is it to deny that giving them immediate access to lawyers could destroy what the government calls the "relationship of trust and dependency that is essential to effective interrogation." Lawyers are trained to believe that their ethical code requires coaching even the guiltiest of clients not to tell interrogators anything and helping clients "remember" exculpatory facts.

To strike a balance in such cases, the law should allow the government a specified number of days or weeks of incommunicado interrogation and then require a fair hearing before an impartial military or civilian tribunal to give the detainee a chance to contest the enemy-combatant label. A lawyer could be appointed to represent the court-not the detainee-and assigned to help him tell his version of the facts, without coaching him to resist interrogators or to concoct a false story. The lawyer should also pursue vigorously any other witnesses or evidence that may support the detainee’s account, and then present his case to the court. The entire process (excepting any appeal) could be completed in a few days-and interrogation could resume-unless the detainee plausibly contradicts the government’s claim that he is an enemy combatant.

This may seem a pale shadow of the elaborate process used in criminal cases. But it would be more due process than Padilla has received so far. And it would be no worse than the travesties of due process that are all too common in death-penalty cases, or the due-process extravaganza we saw in the O.J. Simpson trial.