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 Qaeda 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.
"The Administration takes comfort in the fact that this appellate court has been very receptive to the idea of giving the President broad discretion to identify and then detain U.S. citizens as 'enemy combatants,'" CBS News' Legal Analyst Andrew Cohen said. "So that bodes well for this appeal. But looming afterward is the U.S. Supreme Court and that court a few years ago said the executive branch doesn't have complete discretion to lock someone away indefinitely, even during a time of terror."
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 Qaeda's mission.
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.
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.
Cohen notes that Padilla "falls into a new sort of category in the legal war on terror. So far, the federal courts have agreed generally with that premise, but have not agreed to give the Administration complete discretion to detain these sorts of U.S. citizens indefinitely.
"No matter which side wins, the case is likely to go up the ladder to a newly-constituted U.S. Supreme Court," Cohen said.
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.
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.
U.S. District Judge Henry Floyd in Spartanburg, S.C., said in February the government can not hold Padilla indefinitely as an "enemy combatant," a designation President Bush gave him in 2002.
"The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant," Floyd wrote in a 23-page opinion that was a stern rebuke to the government. He gave the administration 45 days to take action.
Joining Luttig in hearing the case 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 different security checkpoints.
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.