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Judge considering 'dirty bomber' motion

Abdullah Al Muhajir, whose birth name is Jose Padilla

NEW YORK (CNN) -- A federal judge has asked government and defense lawyers for more information before he rules on whether the U.S. military is legally detaining a U.S. citizen as an "enemy combatant."

U.S. District Judge Michael Mukasey said Wednesday he will consider the merits of detaining Jose Padilla, who has been publicly accused by Attorney General John Ashcroft of participating in a terrorist plot to detonate a "dirty bomb" -- a conventional bomb laced with radioactive material -- inside the United States.

Mukasey said he also will consider whether the Manhattan federal court still has jurisdiction over the matter, since Padilla has been detained since early June at a U.S Navy brig in Charleston, South Carolina.

"I'd like to decide everything at the same time," the judge said. "I want all the pieces in the shop before I put the machine together," he said.

Final briefings from both sides are not due until late September, with possible oral arguments, and Mukasey's decision, to follow.

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The lack of any formal criminal charges against Padilla is the main reason defense attorney Donna Newman petitioned the court for Padilla's release last month.

Newman, along with defense attorney Andrew Patel, has argued in court papers that there was "insufficient evidence for the government to obtain an indictment" and that Padilla's constitutional rights to due process, to be free from unreasonable seizure and to counsel have been violated.

Newman has not been able to meet or communicate with Padilla since he was transferred from Department of Justice custody to Department of Defense custody.

"Let us see him. Why be held incommunicado?" Newman said outside of court. "If they want to, charge him with a crime."

Prosecutors have said in their court papers that Padilla's designation as an "enemy combatant" by President Bush was proper, because Padilla entered the country for al Qaeda, the Islamic terrorist group that was behind the September 11 attack and remains a "serious threat" to the United States.

They defined such combatants are "those who, during time of war, pass surreptitiously from enemy territory into our own for the commission of hostile acts involving destruction of life or property."

"How does someone who is not a member of the armed forces of a nation state become an armed combatant?" Patel said to reporters outside court.

Patel told the judge that the government had not produced a copy of Bush's order. "We don't know if the order exists in written form," he said. "It is his order that started the ball rolling on this illegal detention," he said.

That's why Bush, Defense Secretary Donald Rumsfeld, and Charleston Naval Commander M. A. Marr are named as respondents to the Padilla petition. Ashcroft, previously named as a respondent, was dropped.

A Justice Department lawyer, Paul Clement, the principal deputy solicitor general, came up from Washington to represent the government.

Clement said that Marr and not Rumsfeld is the proper respondent, because she had "territorial jurisdiction." He reiterated the government's view that the case should be transferred to South Carolina.

Patel noted outside of court that Defense Department regulations exempt the Navy from the "posse comitatus" doctrine, which forbids the military from getting involved in domestic law enforcement matters.

Rumsfeld has said the government's primary interest in holding Padilla was not prosecution but finding out what he might know about possible future terrorist attacks.

Padilla, 31, a Muslim convert who also goes by the name of Abdullah Al Muhajir, was arrested May 8 on a material witness warrant signed by Mukasey at Chicago's O'Hare International Airport, as he returned from a trip to Pakistan.

Padilla, a former Chicago gang member, has a violent criminal record and has spent years inside U.S. prisons. The government transferred him to federal jail in New York and held him there for a month before being moving him to Charleston without notifying his attorney, Newman.

Newman has asked that short of his release, Padilla be returned to the jurisdiction of the federal criminal court in New York.

"It was here that Padilla was brought by the government," she told Mukasey. Outside of court she added, "Any time the judge wants to read more papers is a good sign."