Judge says charge Padilla or free him

A federal judge yesterday ordered the Bush administration to charge dirty bomb suspect Jose Padilla with a crime or release the U.S. citizen and Muslim convert, who has been detained indefinitely as an enemy combatant for more than 2 years.

U.S. District Judge Henry Floyd in South Carolina, where Padilla is being held in a Navy brig, ordered the administration to take action on the case within 45 days.

Judge Floyd, whom President Bush appointed to the federal bench in 2003, ripped the administration for its handling of the Padilla case.

“The president has no power, neither express nor implied, neither constitutional nor statutory, to hold the petitioner as an enemy combatant,” he said in a 23-page opinion.

The judge conceded, “It is true that there may be times during which it is necessary to give the Executive Branch greater power than at other times.”

However, he added that such a granting of power “is in the province of the legislature and no one else — not the Court and not the President.”

Justice Department spokesman John Nowacki said the government will appeal the decision.

The administration has used the enemy-combatant classification since the September 11 attacks to detain and interrogate terrorism suspects outside the purview of the U.S. court system.

Padilla, 32, was arrested in 2002 at Chicago’s O’Hare International Airport, where he was arriving from Pakistan. Federal law-enforcement authorities have said Padilla, who took the name Abdullah al-Muhajir upon his conversion to Islam, is suspected in an al Qaeda terrorist scheme to detonate a “dirty bomb,” which spreads deadly radioactive material, in the United States.

Civil liberties advocates applauded yesterday’s ruling.

The decision “represents yet another setback to the administration’s misguided belief that it does not have to follow our constitutional traditions in pursuing terrorists,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Padilla’s attorney Andy Patel also hailed the ruling to the Associated Press as “one of those moments that all Americans should be proud of.”

The Padilla case is one of two known cases in which the administration has used the enemy-combatant classification on a U.S. citizen.

The other such detention involved Yaser Esam Hamdi, a Louisiana native of Saudi origin who was captured in an Afghanistan battle during the U.S.-led war to oust that nation’s Taliban regime, which harbored Osama bin Laden and his al Qaeda terrorists even after September 11.

Mr. Hamdi, who was held without charges for nearly three years, 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.

In June, the Supreme Court ruled in the Hamdi case and cases brought by foreigners held at the U.S. Navy base at Guantanamo Bay, Cuba, that enemy combatants — U.S. citizens or otherwise — have a right to petition their detention in U.S. federal courts.

Padilla’s case also was argued simultaneously before the high court. But the justices ruled that it had been improperly filed in lower courts, and using the Hamdi ruling, Padilla has since been challenging his detention in federal court in South Carolina.