updated 7/19/2005 12:53:43 PM ET 2005-07-19T16:53:43

The lawyer for an American citizen accused of being involved in a “dirty bomb” plot told appeals court judges Tuesday that his client shouldn’t be held indefinitely without charges. But a government attorney said the president must have the authority to protect U.S. citizens.

The 4th U.S. Circuit Court of Appeals heard arguments in the case of Jose Padilla, a former Chicago gang member and Muslim convert arrested at Chicago’s O’Hare International Airport in May 2002. Accused of being an al-Qaida operative, he was designated an “enemy combatant” by President Bush one month later.

“I may be the first lawyer to stand here and say I’m asking for my client to be indicted by a federal grand jury,” Padilla’s lawyer, Andrew Patel, told the three-judge appeals panel.

The Justice Department alleges that Padilla, now in a military prison in Charleston, S.C., flew from Pakistan to the U.S. on a scouting mission to detonate a so-called “dirty bomb” — a conventional bomb laced with radioactive material — within the United States.

The department also alleges that Padilla planned to blow up apartment buildings by filling them with natural gas.

“It would be very, very strange to say an intent on blowing up apartment buildings and killing U.S. citizens again is not a hostile act,” U.S. Solicitor General Paul Clement said.

Judge J. Michael Luttig, who presided at the hearing, pressed Clement on whether the government was suggesting that the battlefield in the war on terror now includes the U.S.

“I can say that. I can say it boldly,” Clement said.

But he did not emphasize that point in his arguments, saying instead that Padilla can be held as an enemy combatant because he trained in Afghanistan before coming to the U.S. to carry out al-Qaida’s mission.

Padilla's attorneys demand charges, or freedom
The government contends that the Bush administration, under the president’s war powers, has the authority to order detention of “enemy combatants” and that the authority is vital to the fight against terrorism. But lawyers for Padilla question whether his indefinite detention is a violation of U.S. civil liberties.

“We are quite confident we will prevail,” said Donna Newman, another attorney for Padilla, after the hearing. “We’ve said all along if he’s done something wrong, charge him. ... That is what has always worked.”

Padilla is one of two U.S. citizens held as enemy combatants since the Sept. 11, 2001, terrorist attacks.

Yaser Esam Hamdi, captured on a battlefield in Afghanistan, was released and flown to Saudi Arabia last year after the Supreme Court rejected the government’s attempts to detain Hamdi indefinitely without trial.

In December 2003, the 2nd U.S. Circuit Court of Appeals in New York ruled that the Bush administration lacked the authority to designate Padilla an “enemy combatant.” The ruling was thrown out in June 2004 when the U.S. Supreme Court declared that the case should have been filed in South Carolina rather than New York.

Court packed for hearing
Attorneys for Padilla filed the appeal in Spartanburg, S.C., where a U.S. District Court judge ordered the government to either charge Padilla or release him.

Hearing the case with Judge Luttig were Judges M. Blane Michael and William B. Traxler Jr. The court usually takes several weeks to rule.

The courtroom was packed — extra folding chairs were brought in — and spectators had to pass through two security checkpoints.

Meanwhile, in Washington, the military’s legal adviser overseeing the possible trials of up to 12 terror suspects at Guantanamo Bay, Cuba, said Tuesday that he has not seen evidence from those cases to warrant seeking the death penalty.

Four suspects at the military prison have been charged, and charges are being prepared against eight others. Air Force Brig. Gen. Thomas Hemingway said Tuesday in Washington that the evidence he has seen does not merit a capital case against any of them.

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