RICHMOND, Va. -- A government attorney argued yesterday that America is a battlefield and President Bush therefore has the authority to detain enemy combatants indefinitely in this country.
Paul Clement, acting solicitor general of the United States, made the comments as a three-judge panel of the US Court of Appeals for the Fourth Circuit here is considering whether to overturn a lower court ruling that Jose Padilla should be charged with a crime or released. In 2002, Padilla, a former Chicago gang member and Muslim convert, was taken into custody by the military and has been held without trial ever since.
The government alleges that Padilla, an American citizen, trained with Al Qaeda in Afghanistan and Pakistan, and arrived in the United States in May 2002 with the intent to blow up apartment buildings.
The panel assigned to hear the arguments was Judge Michael Luttig of Alexandria, Va.,an appointee of former President George H.W. Bush, and two appointees of former President Clinton: Judge Blane Michael of Charleston, W.Va., and Judge William B. Traxler Jr. of Greenville, S.C.
The judges were most concerned with how to handle Padilla in light of the Supreme Court's ruling last year on Yaser Esam Hamdi. Another American citizen, Hamdi was captured by the military with Taliban forces in Afghanistan and placed in a Navy brig in Norfolk. The Supreme Court ruled that his detention was lawful, but he was entitled to a hearing to challenge the allegations against him.
But moments after Clement began his oral argument, Luttig interrupted to say that ''arguably, Judge [Sandra Day] O'Connor in 'Hamdi' limited that law to the battlefield detention, did she not?" Padilla was picked up at Chicago's O'Hare International Airport on a warrant from a federal court in New York, and only later turned over to the military.
''That's not how I would read the case," Clement responded.
Luttig repeatedly pressed Clement, even after the solicitor general noted that Padilla's alleged intentions as a soldier of al Qaeda -- to target civilians -- constituted ''unlawful combatancy" even if he were on a battlefield in uniform.
''Those accusations don't get you very far," Luttig replied, ''unless you're prepared to boldly say the United States is a battlefield in the war on terror."
Clement answered, ''I can say that, and I can say it boldly."
But Michael said that Padilla wasn't captured anywhere near a battlefield. ''You captured Padilla in a Manhattan jail cell," Michael said. ''What, in the laws of war, allows you to undertake a nonbattlefield capture and hold them for the duration? I don't think you cite anything."
Michael, addressing Clement's claim that America is a battlefield, then asked, ''to call the United States a battlefield, wouldn't you have needed a specific authorization from Congress? It's not up to us as a court to develop laws of war."
Andrew Patel argued the case for Padilla, who has been held in a South Carolina Navy brig for three years, and only last year was granted the right to meet with his attorneys. ''I may be the first lawyer to stand here," Patel told the panel, ''and say I'm asking for my client to be indicted by a federal grand jury."
Padilla's lawyers believe that neither the Hamdi decision, nor a congressional authorization of military powers to the president in September 2001, negates an American's right to challenge the government's accusations at trial.
Michael said, ''If we were to rule in your favor, we'd be saying you get a free pass to go back to the battle."
Patel responded, ''What you'd get a free pass to is a federal indictment and trial."
Traxler spoke only once during the hourlong arguments, to ask if Luttig's hypothetical situation would be different if the terrorist were a foreign citizen, or in uniform.
Patel said it would not, unless Congress specifically authorized the military to take such action.
No date was set for when the panel might rule.
The losing side could then ask that the entire Fourth Circuit Court rehear the case, and then the case is probably headed to the US Supreme Court.