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Feds defend incarceration of 'dirty bomb' suspect

NEW YORK (CNN) -- Federal prosecutors responded on Wednesday to a defense attorney's claim that the U.S. government is holding alleged "dirty bomb" suspect Jose Padilla illegally and that he should be released from custody.

In a document filed with the U.S. District Court in Lower Manhattan, prosecutors said Padilla's status as an "enemy combatant" -- which the government has cited as a constitutional reason to detain him -- is not diminished by the fact that he is a U.S. citizen.

"Citizens who associate themselves with the enemy and with its aid, guidance and direction, enter this country bent on hostile acts, are enemy belligerents," the document said.

The prosecutors said Padilla, 31, was trying to infiltrate the United States covertly for the al Qaeda terrorist network, which remains a "serious threat" to the United States. As such, he qualifies as an enemy combatant who is being held consistent with the laws of war.

"The authority of the United States to seize and detain enemy combatants is well settled -- and vital to our core military objectives," the document said. Unlawful combatants, it said, are "those who, during time of war, pass surreptitiously from enemy territory into our own for the commission of hostile acts involving destruction of life or property," according to case law.

Padilla was arrested May 8 in Chicago on a material witness warrant and then detained in a federal jail in New York before being declared a "military combatant" and whisked away to a Charleston, South Carolina, military brig in the middle of the night on June 9.

The Justice Department alleges Padilla flew to the United States on an al Qaeda scouting mission to detonate a radioactive "dirty bomb" -- a conventional bomb laced with radioactive material, in the United States.

Padilla -- who also goes by the name of Abdullah Al Muhajir -- was arrested at O'Hare International Airport after arriving from Pakistan on a connecting flight through Zurich. A Muslim convert with a violent criminal past in the United States, Padilla had spent recent years in the Middle East.

Padilla's court-appointed defense attorney, Donna Newman, called for Padilla's release in a document known as a petition for habeas corpus. In her petition, Newman noted that Padilla has not been formally charged with any criminal activity.

"There is insufficient evidence for the government to obtain an indictment," she wrote.

"Among the rights which the government has violated are: his right to due process, his right to be free from unreasonable seizure, his right to counsel and his right to a grand jury," she continued.

Newman asked U.S. District Court Judge Michael Mukasey, who had signed the material witness warrant, that Padilla be returned to the jurisdiction of the federal court in Manhattan and that Padilla be released. She has not been able to meet or communicate with Padilla since he was transferred from Department of Justice to Department of Defense custody.

Though the prosecutors cited case law in defining "unlawful combatants," Newman has pointed out the term is not defined under the U.S. Code or the Uniform Code of Military Justice.

Justice Department lawyers have told staff of the Senate Judiciary Committee that the United States would hold Padilla indefinitely, and that the executive branch alone has the power to decide when a person qualifies as an enemy combatant.

Defense Secretary Donald Rumsfeld has said the primary interest in Padilla right now is to figure out what he may know to help prevent a future attack rather than trying him in a court.

An alleged associate of Padilla is in custody in Pakistan, U.S. officials familiar with the investigation have said.




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