NEW YORK - The president of the United States does not have the power to detain an American citizen seized on U.S. soil as an enemy combatant, a federal appeals court ruled on Thursday, in a serious setback to the bush administration's war on terror.

A federal appeals court, in a harsh blow to the Bush administration's anti-terrorism policies, on December 18, 2003 ordered the government to release Jose Padilla, who is being held incommunicado in a Navy brig, from military custody within 30 days. Padilla is shown in this undated driver's license photograph. Photo by Florida DMV/Reuters

The U.S. Second Circuit Court of Appeals, in a 2-1 ruling, said only the U.S. Congress can authorize such detentions and it ordered the government to release Jose Padilla from military custody within 30 days.

The court said that the government can transfer Padilla, a U.S. citizen who has been held incommunicado in a Navy prison, to a civilian authority that can bring criminal charges against him.

"Presidential authority does not exist in a vacuum and this case involves not whether those responsibilities should be aggressively pursued, but whether the President is obligated in the circumstances presented here to share them with Congress," the court said.

"Where, as here, the President's power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of Americans on American soil...."

A spokesman for the Manhattan U.S. Attorneys office did not have an immediate comment.

In Washington, Justice Department spokesman Mark Corallo said, "We are reviewing the opinion." He declined further comment.

Padilla is a suspect in an al Qaeda plot to detonate a radioactive "dirty bomb" in the United States. He was arrested at Chicago's O'Hare airport 18 months ago as he arrived from Pakistan. He was transported to Manhattan federal court system where he was held as a material witness in a federal grand jury terrorism investigation. The Bush administration later classified him as an enemy combatant and he was transferred to a Navy prison in South Carolina.

His New York lawyers sought his release as well as access to their client.

Federal prosecutors have argued Padilla should not have access to attorneys because they said he posed a threat to national security and defense lawyers would interfere with his interrogation. They also believe defense lawyers could unwittingly be used to pass messages to al Qaeda operatives.

© Reuters Ltd 2003

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