WASHINGTON -- Lawyers for Jose Padilla, a US citizen held as an enemy combatant for nearly four years, want the Supreme Court to resolve how much power a president has while the nation is at war.
Lawyers Donna Newman and Andrew Patel told the high court in papers filed Tuesday that the justices must step in ''to preserve the vital checks and balances" on the president.
In an another twist to the case, Solicitor General Paul Clement asked the court yesterday to order Padilla's transfer from military to civilian custody immediately.
In their filing, Newman and Patel cited the Bush administration's interpretation of the president's war powers to justify its decision to hold Padilla -- until recently -- without charges in a military brig in South Carolina.
Padilla's lawyers also said President Bush abused his war-powers authority by approving warrantless surveillance of conversations between people in the United States and abroad who had suspected terrorist ties.
Such developments ''underscore the need for this court to address the fundamental constitutional questions presented by this case," the lawyers wrote.
Padilla's appeal not only deals with questions of presidential power, but also seeks to resolve whether Padilla should remain in military or civilian custody.
Last week, the Richmond-based US Court of Appeals for the Fourth Circuit urged the Supreme Court to take the case after chastising the administration for shifting its tactics in the Padilla case and warning the government that it was risking its credibility with the courts.
A three-judge appellate panel refused the administration's request to vacate a September ruling that gave Bush wide authority to detain enemy combatants indefinitely on US soil without charges.
The decision, written by Judge J. Michael Luttig, questioned why the administration used one set of facts before the court for 3 1/2 years to justify holding Padilla without charges but used another set to persuade a grand jury in Florida to indict him last month.
Clement, in yesterday's emergency filing with Chief Justice John Roberts, said the appeals court overstepped its authority and its decision ''defies both law and logic" because Padilla's lawyers also want him transferred to civilian custody.
He said the decision also was improper because it amounted to ''an unwarranted attack on the exercise of executive discretion."
Padilla, a former Chicago gang member, was arrested in 2002 at O'Hare Airport as he returned to the United States from Afghanistan. Initially, John Ashcroft, who was attorney general at the time, alleged that Padilla planned to set off a radioactive device known as a dirty bomb.
The administration then argued before federal courts in New York and Virginia that Padilla should be held without charges because he had come home to carry out an Al Qaeda-backed plot to blow up apartment buildings in New York, Washington, or Florida.