The judge, Henry Floyd, ordered the government to release José Padilla, who is also known as Abdullah al-Muhajir, within 45 days from the military brig in Charleston, South Carolina, or charge him with a crime. A Justice Department spokesperson announced that the Bush administration plans to immediately appeal the decision.

“The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant,” the judge wrote. “To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this nation’s commitment to the separation of powers.”

Padilla, 34, was arrested in May 2002 at Chicago’s O’Hare International Airport as he arrived from Pakistan. He was taken to New York as a material witness in the Sept. 11, 2001, attacks on the World Trade Center and Pentagon. Two days before a judge was to hear a challenge to Padilla’s detention, the Bush administration declared him an “enemy combatant” and transferred him to the Navy brig in South Carolina. Padilla has been held there incommunicado for the past 32 months without access to his attorneys or family.

The designation of Padilla as an enemy combatant is based on information from two individuals who claim he met with leaders of al-Qaeda and discussed plans to detonate a radiological bomb in the United States. The device, dubbed a “dirty bomb,” uses a conventional explosive to disperse low-grade radioactive material. According to Padilla’s attorneys, one of the individuals has since recanted his accusation. The other, they say, has a reputation for providing false information.

This is the second time that the government’s handling of Padilla has been rejected by a federal court. In December 2003, a federal appeals court in New York also ruled that Bush lacked authority to hold Padilla in a military brig and ordered him released. However, the Justice Department appealed this decision, and the Supreme Court ruled in June 2004 that Padilla’s petition for release should have been processed in federal court in South Carolina, not New York.  
 
 
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