RICHMOND, Va. – A lawyer for Jose Padilla (search), an American accused of plotting to detonate a radioactive "dirty bomb," went before a federal appeals court Tuesday and demanded the U.S. government either charge his client with a crime or set him free.
But a Bush administration lawyer told the court that the president must have authority to indefinitely detain suspected terrorists who come to the United States intent on killing civilians.
Padilla, a former Chicago gang member and Muslim convert suspected of being an Al Qaeda (search) operative, was seized in 2002 after flying from Pakistan to Chicago on what authorities said was a scouting mission for a plot to set off a conventional bomb laced with radioactive material. Padilla also is suspected of planning to blow up apartment buildings in several cities by filling them with natural gas.
President Bush declared Padilla an "enemy combatant," a designation that allows the military to hold someone indefinitely without charges. Padilla is in the Navy brig in Charleston, S.C., and has been held for the past three years.
At issue before the 4th U.S. Circuit Court of Appeals (search) is whether Padilla — an American seized on U.S. soil — should have been designated an enemy combatant.
"I may be the first lawyer to stand here and say I'm asking for my client to be indicted by a federal grand jury," Padilla's lawyer, Andrew Patel, told a three-judge panel of the court, widely regarded as the most conservative in the nation.
Patel later told reporters that the government should "put up or shut up — it's that simple."
In a packed courtroom under tight security, Circuit Judge J. Michael Luttig pressed Bush administration lawyer Paul Clement on whether the government was suggesting that the battlefield in the war on terror now includes U.S. soil.
"I can say that. I can say it boldly," Clement said.
But Clement did not emphasize that point in his arguments, saying instead that Padilla can be held as an enemy combatant because he trained overseas before flying to the U.S. to carry out the mission. That is akin to crossing enemy lines to commit a "hostile act," Clement said.
"It would be very, very strange to say an intent on blowing up apartment buildings and killing U.S. citizens again is not a hostile act," he said.
Luttig also closely questioned Patel, suggesting his position that Padilla's case should be handled like any other criminal case "is a failure to recognize the real-world circumstances that can confront a president of the United States."
The judge offered a scenario in which the president is informed in the middle of the night that a suspected terrorist has just arrived in New York and is expected to detonate a bomb within minutes. Could the president have the military capture the suspect? Luttig asked.
Patel said he could, but that the suspect would have to be turned over to civilian authorities as soon as possible.
The 4th Circuit received the case after a South Carolina judge ruled that the government must charge Padilla with a crime or release him.
The same court two years ago upheld the president's right to detain another U.S. citizen designated as an enemy combatant, Yaser Esam Hamdi. However, Hamdi was released and flown to Saudi Arabia after the U.S. Supreme Court ruled he could challenge his detention in U.S. courts.
A key difference in the two cases is that Hamdi was captured while fighting alongside the Taliban on the battlefield in Afghanistan, while Padilla was taken into custody in the United States.
The court usually takes several weeks to rule.