WASHINGTON – "Dirty bomb" suspect Jose Padilla (search) has asked the Supreme Court (search) to limit the government's power to hold him and other U.S. terror suspects indefinitely and without charges.
The case of Padilla, who has been in custody more than three years, presents a major test of the Bush administration's wartime authority. The former gang member is accused of plotting to detonate a radioactive device.
Justices refused on a 5-4 vote last year to resolve Padilla's rights, ruling that he contested his detention in the wrong court. Donna Newman of New York, one of Padilla's attorneys, said the new case, which was being processed at the court Thursday, asks when and for how long the government can jail people in military prisons.
"Their position is not only can we do it, we can do it forever. In my opinion, that's very problematic and something we should all be very concerned about," she said.
Critics contend the government went too far, by putting hundreds of foreigners and two U.S. citizens in legal limbo following the Sept. 11, 2001, attacks. The Bush administration argues that with national security at stake, terrorist suspects are not entitled to the constitutional protections given ordinary criminal suspects.
The Supreme Court has disagreed, although the makeup of the court is changing.
Justices will not decide until late this year whether to hear Padilla's appeal.
One Bush justice will be on the bench, and a second could be on the way. John Roberts replaced the late Chief Justice William H. Rehnquist (search) who died in September. Bush named Harriet Miers to succeed the retiring Justice Sandra Day O'Connor, but on Thursday Miers withdrew her nomination.
"I think the court is going to have to take it," said Scott Silliman, a former Air Force attorney and Duke University law professor. "This is a vital case on the principle of an American citizen captured in the United States, and what constitutional rights does he have."
Padilla's case has sharply divided the courts. A federal judge in South Carolina ordered the government to either charge him or release him from detention. However, a panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled in September that the president has the power to use military detentions for Americans "closely associated with al-Qaida, an entity with which the United States is at war."
Officials contend Padilla received weapons and explosives training from al-Qaida and planned an attack with a type of "dirty bomb." The New York-born convert to Islam was one of just two U.S. citizens held as enemy combatants. The second, Louisiana native Yaser Hamdi, was released a year ago after the government said he no longer posed a threat to the United States and no longer had any intelligence value.
O'Connor authored a 2004 decision that rebuked the government for locking up Hamdi without traditional legal rights. "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," she said.
Her replacement could play a key role in the Padilla case, which is different because Padilla was arrested in America. Hamdi was apprehended overseas and brought to the United States.
"In the face of genuine threats to the safety of the nation, the security of the Republic has always rested in the sustainability of its freedoms and liberties," justices were told in Padilla's appeal.
Another presidential authority case is already pending at the Supreme Court, an appeal from Osama bin Laden's one-time driver, Salim Ahmed Hamdan. At issue there are the rights of foreigners who have been charged and face a military trial in a type of proceeding resurrected from World War II.
The case is Padilla v. Hanft.