updated 1/5/2005 9:03:48 PM ET 2005-01-06T02:03:48

Attorneys for Jose Padilla, an American jailed since 2002 and accused in an al-Qaida plot to set off a radiological bomb, argued Wednesday that the government must charge him with a crime or set him free.

Padilla’s attorneys asked U.S. District Judge Henry Floyd to hear their case through a writ of habeas corpus, a petition that allows a civilian judge to consider their case. Padilla was not present at Wednesday’s hearing.

Padilla was arrested at Chicago’s O’Hare International Airport in 2002 after returning from Pakistan. The federal government has said he received weapons and explosives training from members of al-Qaida.

In Afghanistan, Padilla carried an AK-47 with al-Qaida and Taliban forces while U.S. soldiers were there after the terrorist attacks of Sept. 11, 2001, said David Salmons from the Solicitor General’s Office. He then fled to Pakistan, where he met with al-Qaida leaders and agreed to return to the United States on a mission to detonate a radiological “dirty bomb,” Salmons said.

Padilla, whom President Bush designated an enemy combatant, has been held at the brig at the Charleston Naval Weapons Station for nearly three years. He has not been charged with a crime.

Jonathan Freiman, one of Padilla’s attorneys, said the government’s allegations are not true and based on unreliable witnesses, and that Padilla must be charged or set free. Not doing so could lead to a dangerous precedent of any citizen being held without charges, he said.

ACLU supports Padilla’s lawyers
The American Civil Liberties Union has filed a brief in support of Padilla’s attorneys.

“If everything you say about Jose Padilla is true, prove it,” said Denyse Williams, executive director of the ACLU in South Carolina. “Everybody says the war on terror could last a lifetime. If they can do it to him, they can do it to others.”

Salmons said the president has the right to detain any enemy combatant while the United States is fighting al-Qaida, but added that there’s no risk that the president may round up citizens and detain them.

Bush has only determined two citizens were enemy combatants — Padilla and Louisiana native Yaser Hamdi — and both were connected with groups fighting U.S. soldiers, Salmons said.

Hamdi was held in U.S. solitary confinement for nearly three years after being captured on an Afghan battlefield. He was released in October after the Justice Department said he no longer posed a threat to the United States and no longer had any intelligence value.

Judge expects opinion in 30-45 days
Floyd said he will issue an opinion on Padilla’s case in the next 30 to 45 days.

Donna Newman, a lawyer for Padilla, said she has met with him and “under the circumstances, he is holding up.”

In 2003, the 2nd U.S. Circuit Court of Appeals in New York ordered Padilla freed unless the government charged him with a crime.

The U.S. Supreme Court, without ruling on the merits of the case, decided the circuit court had no jurisdiction over the brig commander and the case was refiled in South Carolina.

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