updated 11/21/2006 4:30:48 PM ET 2006-11-21T21:30:48

Federal prosecutors have asked an appeals court to reinstate a key terrorism charge against alleged al-Qaida operative Jose Padilla, contending a judge erred in finding that it duplicated other counts in the same indictment.

Padilla and two co-defendants are charged with being part of a North American support cell that provided money, supplies and recruits to Islamic extremists worldwide. Padilla, a U.S. citizen, was held for 3½ years without charge as an “enemy combatant,” originally accused of plotting to detonate a radioactive “dirty bomb” in a U.S. city.

The pleading filed with the 11th U.S. Circuit Court of Appeals late Monday argues that the charge dismissed by U.S. District Judge Marcia Cooke is a distinct offense in the case.

Cooke ruled in August that the first count of the indictment against Padilla and two others — charging a conspiracy to “murder, kidnap and maim persons in a foreign country” — was essentially the same as two other terrorism support counts. The dismissed charge is the only one in the case that carries a potential life prison sentence.

The appeal by U.S. Attorney R. Alexander Acosta’s office contends Cooke used the wrong legal analysis to dismiss the charge.

Attorneys for Padilla and co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi had argued before Cooke that leaving the disputed charge in place could subject the defendants to double jeopardy, or being tried for the same crime twice. They also said multiple charges might make the three appear more guilty to jurors.

Defense attorneys are to respond to the prosecution appeal Dec. 11.

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