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Court weighs 'dirty bomb' suspect's detention

U.S. citizen has been held since June 2002 as enemy combatant

From Phil Hirschkorn
and Deborah Feyerick
CNN New York Bureau

Appeals court judges listen to attorneys' arguments Monday.
Appeals court judges listen to attorneys' arguments Monday.

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Attorneys for 'dirty bomb' suspect Jose Padilla will challenge the validity of his detention as an enemy combatant before a federal appeals court. CNN's Deborah Feyerick reports (November 17)
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Jose Padilla
Enemy combatant
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NEW YORK (CNN) -- A federal appeals court panel cast doubt Monday on whether President Bush has the authority to designate an American citizen an "enemy combatant" and detain him indefinitely without criminal charges.

In a legal showdown likely to go to the Supreme Court, the government maintained that Bush's military moves in the war on terrorism are not subject to judicial review.

Attorneys representing the prisoner, Jose Padilla, said the administration is asking for unchecked powers that violate the Constitution.

"We had the unusual experience today of going into a United States federal appeals court and attempting to get authorization to be able to defend our client," said Padilla's attorney, Andrew Patel. "That's not something that ... a lawyer in this country has to do."

Oral arguments over Padilla's captivity were heard by a three-judge panel of the 2nd U.S. Circuit Court of Appeals in a courthouse next door to the jail from which Padilla was removed 18 months ago and sent to a Navy brig in Charleston, South Carolina.

The appeals court did not indicate a timetable for its decision.

Padilla, 33, accused of being an al Qaeda operative, has been in federal custody since he arrived in Chicago, Illinois, in May 2002 on a flight from Pakistan. He was initially arrested as a material witness for the grand jury probe into the September 11, 2001, terrorist attacks.

The government maintains Padilla received explosives training in al Qaeda camps inside Afghanistan and plotted with the group to bomb hotels and gas stations, and to detonate a radioactive "dirty bomb" -- a conventional explosive laced with radioactive material -- inside the United States.

Defense attorneys maintain Padilla traveled to Chicago to visit his son.

The government never levied criminal charges against Padilla before President Bush declared in June 2002 that he represented a "grave danger to the national security" of the nation, reclassifying him as an enemy combatant, and transferring him to military custody, where he has remained incommunicado.

Judges discuss time limit

The court expressed concern about the length of the detention and wanted to know if there could be a time limit for detaining a person not caught on a battlefield.

"How long can Mr. Padilla remain an enemy combatant?" asked Judge Richard Wesley. "Is Mr. Padilla in limbo until the president decides? ... What's the outer limit?"

"As long as the conflict," said Deputy Solicitor General Paul Clement, who argued the government's case.

Stanford University law professor Jenny Martinez, arguing for Padilla, said the government's position runs contrary to U.S. legal tradition.

"When the courts are open and operating," Martinez said, "that person must be brought before the court."

The judges questioned whether the president's undisputed authority on international battlefields, such as in Afghanistan, extended to domestic soil.

"Al Qaeda made the battlefield the United States," Clement said.

"Congress has to say that, and I'm not certain they did," said Judge Rosemary Pooler, who presided over the two-hour-15-minute hearing. "As terrible as 9/11 was, it didn't repeal the Constitution," she said.

War resolution

Clement said the congressional resolution authorizing the use of military force to respond to the September 11 attacks extended to U.S. citizens on American soil to prevent further attacks or for intelligence gathering.

"Anyone who is associated with al Qaeda is aiding the enemy," Clement said.

Judge Barrington Parker said he thought the war resolution "has to be stretched" to permit such executive power, which would be "breathtaking in its scope."

If the court upheld that argument, "We would be affecting a sea change in the constitutional life of this country," Parker said.

Pooler likened the struggle with al Qaeda to the long-standing war on drugs, and said the conflict differed from previous wars with nations that clearly ended with treaties.

Hamdi case

The court also asked whether the case belonged in New York, considering that Padilla is incarcerated at the Charleston Naval Facility in South Carolina.

Clement told the court the government might eventually grant Padilla access to counsel, but only when the administration concludes it has exhausted its interrogations of him.

After the oral arguments were made, Department of Justice officials in Washington told reporters that the Department of Defense may soon be through interrogating Padilla.

The government sees a precedent for its arguments in the case of Yaser Hamdi, an Afghanistan battlefield captive who bears joint U.S. and Saudi citizenship and was the first domestic prisoner declared an enemy combatant.

Hamdi, initially transferred to the base at Guantanamo Bay, Cuba, and now held in South Carolina, has been detained for nearly two years without access to lawyers.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that Bush's treatment of Hamdi could not be challenged, but the U.S. Supreme Court is already considering that case.

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