Sign InRegister

» Current justices | Chief justice duties | Court appointments | Special

Appeals court hears accused 'dirty bomb' case

Defense attorney argues Padilla should be charged or released

From Terry Frieden
CNN Washington Bureau

Jose Padilla has been held since May 2002 when he returned to the United States from Pakistan.

• Padilla attorneys argue case

SPECIAL REPORT

YOUR E-MAIL ALERTS

RICHMOND, Virginia (CNN) -- The 4th U.S. Circuit Court of Appeals heard arguments Tuesday on whether the Bush administration has the authority to hold accused "dirty bomb" suspect Jose Padilla indefinitely until the war on terrorism ends.

Now held at a military brig in Charleston, South Carolina, Padilla is an American who has been jailed for more than three years without charges. The administration has designated him as an "enemy combatant."

U.S. authorities said he was suspected of plotting with al Qaeda to detonate a radioactive "dirty bomb" and blow up apartment buildings in the United States.

The hearing before a third-judge appellate panel came after U.S. District Court Judge Henry Floyd ruled this year that Padilla could no longer be held without criminal charges.

Much of Tuesday's court arguments -- by Solicitor General Paul Clement and Padilla attorney Andrew Patel -- centered on the definition of a battlefield and whether U.S. territory qualified as such.

Clement argued the government has the authority under a post-9/11 congressional resolution to detain an American in U.S. territory as part of the effort against terrorism.

Patel contended the government has overstepped its authority, saying his client should either be charged with a crime, as have other U.S. citizens detained in terrorism probes, or be released.

Asked where the battlefield starts and stops, Patel said, "It's where the courts cannot operate. That's where the battlefield [is]."

Another attorney for Padilla, Donna Newman, told reporters she believes her client will prevail "because there is just simply no authority for the president to detain an American citizen on American soil."

Last year, the U.S. Supreme Court affirmed the president's right to detain citizens as "enemy combatants" during a military conflict but held that such prisoners could challenge the merits of their captivity before a neutral fact-finder.

The majority opinion said war was not "a blank check" for the executive branch and that "an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

In that case, Yaser Hamdi -- an American citizen born in Louisiana to Saudi parents -- was arrested in Afghanistan with a rifle in December 2001. The U.S. government maintained Hamdi was traveling with a military unit of the Taliban, the deposed regime that gave al Qaeda harbor in Afghanistan, when he was captured.

Hamdi was released from U.S. custody last year and returned to Saudi Arabia, precluding the need for any hearing.

Under the terms of his release, he was to renounce his U.S. citizenship and never travel to Afghanistan, Iraq, Israel, Pakistan, Syria, the West Bank or Gaza. He is also required to report any intent to travel outside Saudi Arabia for the next 15 years. If accused of any wrongdoing, Hamdi is to be subject to Saudi law.

Padilla was arrested in May 2002 at O'Hare International Airport in Chicago, Illinois, and designated an "enemy combatant" a month later.

The Brooklyn, New York, native, grew up in Chicago. He originally was accused of plotting with al Qaeda to detonate a radioactive "dirty bomb" in the United States, and the U.S. Justice Department later alleged he planned to blow up apartment buildings using natural gas.

In a related issue, the hearing focused on whether the president has the authority to use the nation's military to arrest U.S. citizens in emergency situations.

Faced with a hypothetical cited by Judge J. Michael Luttig concerning a terrorist about to blow up facilities in New York, Clement said the president not only is authorized to use the military to protect the public in such a case, he is duty-bound to do so.

Patel differed, saying the president doesn't have such authority.

Lutting dominated much of the questioning at Tuesday's hearing. The judge's queries seemed to support the argument that the president has the authority to hold Padilla if the United States is considered part of the battlefield.

Story Tools

Click Here to try 4 Free Trial Issues of Time!

Home Page

Get up-to-the minute news from CNN

CNN.com gives you the latest stories and video from the around the world, with in-depth coverage of U.S. news, politics, entertainment, health, crime, tech and more.

Home Page

Get up-to-the minute news from CNN

CNN.com gives you the latest stories and video from the around the world, with in-depth coverage of U.S. news, politics, entertainment, health, crime, tech and more.