updated 10/27/2005 10:22:20 AM ET 2005-10-27T14:22:20

“Dirty bomb” suspect Jose Padilla has asked the Supreme Court to limit the government’s power to hold him and other U.S. terror suspects indefinitely and without charges.

The case of Padilla, who has been in custody more than three years, presents a major test of the Bush administration’s wartime authority. The former gang member is accused of plotting to detonate a radioactive device.

Justices refused on a 5-4 vote last year to resolve Padilla’s rights, ruling that he contested his detention in the wrong court. Padilla’s attorney Donna Newman of New York said the new case, which was being processed at the court Thursday, asks when and for how long the government can jail people in military prisons.

“Their position is not only can we do it, we can do it forever. In my opinion, that’s very problematic and something we should all be very concerned about,” she said.

Critics contend the government went too far, by putting hundreds of foreigners and two U.S. citizens in legal limbo following the Sept. 11, 2001, attacks. The Bush administration argues that with national security at stake, terrorist suspects are not entitled to the constitutional protections given ordinary criminal suspects.

The Supreme Court has disagreed, although the makeup of the court is changing.

Justices will not decide until late this year whether to hear Padilla’s appeal.

Courts divided
One Bush justice will be on the bench, and a second could be on the way. John Roberts replaced the late Chief Justice William H. Rehnquist who died in September. Bush named Harriet Miers to succeed the retiring Justice Sandra Day O’Connor, but on Thursday Miers withdrew her nomination.

“I think the court is going to have to take it,” said Scott Silliman, a former Air Force attorney and Duke University law professor. “This is a vital case on the principle of an American citizen captured in the United States, and what constitutional rights does he have.”

Padilla’s case has sharply divided the courts. A federal judge in South Carolina ordered the government to either charge him or release him from detention. However, a panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled in September that the president has the power to use military detentions for Americans “closely associated with al-Qaida, an entity with which the United States is at war.”

Officials contend Padilla received weapons and explosives training from al-Qaida and planned an attack with a type of “dirty bomb.” The New York-born convert to Islam was one of just two U.S. citizens held as enemy combatants. The second, Louisiana native Yaser Hamdi, was released a year ago after the government said he no longer posed a threat to the United States and no longer had any intelligence value.

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