Anne Gearan
Associated Press
Jan. 17, 2004 12:00 AM

WASHINGTON - The Bush administration on Friday asked a federal court not to force the release of a U.S.-born citizen and terror suspect and immediately appealed the case to the Supreme Court.

The administration wants the high court to hear the case of Jose Padilla, a former gang member and convert to Islam who was arrested in Chicago in May 2002 in connection with a what was thought to be a plot to set off a radioactive "dirty bomb."

If the Supreme Court agrees, it could combine the case with another that tests the legal rights of a U.S.-born terrorism suspect captured overseas. Together the cases could put the court on track to rule by summer on whether national security justifies detention of American citizens indefinitely and without charges.

The Justice Department filed a late request with a federal Appeals Court in New York, asking that a ruling ordering Padilla's release be put on hold.

"The government will suffer irreparable harm if the mandate" to release Padilla or transfer him to civilian court is carried out, Deputy Solicitor General Paul Clement wrote to the Appeals Court judges.

"The president, in the exercise of his commander-in-chief power during wartime, has determined that Padilla's detention as an enemy combatant is necessary to prevent him from aiding al-Qaida in its efforts to attack the United States," Clement wrote.

President Bush also determined that Padilla holds valuable intelligence information that could help prevent future terror attacks, Clement wrote in a filing with the 2nd U.S. Circuit Court of Appeals.

If granted, Friday's request would suspend the release until the Supreme Court decides whether to hear the appeal.

Padilla is accused of plotting to detonate a dirty bomb, a makeshift device that would use conventional explosives to disperse radioactive materials. The government said he had proposed the bomb plot to Abu Zubaydah, then al-Qaida's top terrorism coordinator. Zubaydah was arrested in Pakistan in March 2002.

Those accusations, however, are not part of the Supreme Court case. The high court would look only at Padilla's detention.

The Supreme Court has already agreed to hear a similar case testing the legal rights of U.S. citizens caught overseas in the war on terrorism, and the Bush administration planned to ask the high court to combine the two cases.

Yaser Esam Hamdi was captured in Afghanistan, while Padilla was arrested on U.S. soil. Lawyers for both men claim their treatment is unconstitutional. Hearing the cases together would address both the rights of U.S. citizens captured abroad and at home.

The cases raise basic questions about the breadth of executive power and the rights of terrorism suspects to defend themselves in court, and represent the most significant civil liberties issue to reach the high court since the Sept. 11, 2001, terrorist attacks.

The 2-1 Appeals Court ruling in the Padilla case held that his detention was not authorized by Congress and that Bush could not designate Padilla as an enemy combatant without that authorization.

The Pentagon could release Padilla or transfer him to civilian authorities who can bring criminal charges, the Appeals Court said. Or Padilla might be held as a material witness in connection with grand jury proceedings, the court said.

Unlike the Padilla case, the government has won its argument in lower courts that Hamdi may be held indefinitely without access to a lawyer or the U.S. court system.

Hamdi, who grew up in Saudi Arabia, was picked up while fighting for the Taliban