Judge: Charge or release Padilla

“The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant.” Judge Floyd

U.S. federal judge, Henry F. Floyd, has ordered Jose Padilla (shown here) to be released or charged with a crime within 45 days. Padilla, 32 and an American citizen, has been held without charge for nearly three years. The release order on Monday confirms that George W. Bush had no authority to order a U.S. citizen to be jailed indefinitely as an "enemy combatant".

Padilla, who at one time was accused of plotting to detonate a "dirty bomb", was arrested at Chicago's O'Hare airport in May 2002 and has been held in a South Carolina naval prison under draconian presidential powers enacted after the events of September 11, 2001.

As expected, the Justice Department said it would appeal the court's decision.

Bush designated Padilla an "enemy combatant" but Judge Floyd ruled that the president had no authority to hold Padilla or to supend his right to due legal process.

"The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold [Padilla] as an enemy combatant," Judge Floyd wrote.

"If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem."

Judge Floyd said that the case was a law enforcement matter, not a military one, and that unless Padilla was charged with a crime, he should be freed.

After Monday’s ruling, ACLU executive director Anthony Romero said: "As Judge Floyd recognised in his opinion, President Bush's actions in the Padilla case flout the checks and balances that ensure our democracy and liberty.".

SPARTANBURG, S.C. 03/01/05