In briefs filed with the 4th Circuit, prosecutors say Padilla researched building an atomic bomb but that al Qaeda leaders thought that the operation was too complicated. Al Qaeda operations chief Khalid Sheik Mohammed suggested that Padilla instead focus on the apartment building plan, the briefs say.

Padilla "accepted the assignment," the court papers say, and departed for the United States with $10,500 in al Qaeda cash, along with travel documents and a cell phone. His journey through the U.S. legal system began when he was arrested by the FBI on a material witness warrant in connection with a terrorism investigation in New York.

Bush designated Padilla an enemy combatant on June 9, 2002, and Padilla's attorneys challenged his detention in federal court in New York. In 2003, the U.S. Court of Appeals for the 2nd Circuit ruled for Padilla.

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Question of public safety?
The government then appealed to the Supreme Court, and the court ruled that Padilla's petition should have been filed in South Carolina. After Padilla refiled there, a federal judge this year ordered the government to charge Padilla with a crime or release him within 45 days.

"To do otherwise," the judge wrote, "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 that safeguards our democratic values and individual liberties."

The government is now appealing that decision to the Richmond-based 4th Circuit, which is generally regarded as the nation's most conservative appellate court. The 4th Circuit ruled in the government's favor in the Hamdi case, saying that the military -- not the courts -- had sole authority to wage war and that courts should defer to battlefield judgments. The names of the three 4th Circuit judges who will hear Padilla's case will not be announced until today.

Donald G. Rehkopf Jr., co-chairman of the military law committee of the National Association of Criminal Defense Lawyers, which filed a brief on Padilla's behalf, said the president is seeking "the kind of executive power that the king of England had, which is why we had the Revolution in the first place."

That would mean, he said in an interview, that "they can arrest you in the middle of the night and take you away."

But Richard A. Samp, chief counsel for the Washington Legal Foundation, a conservative public-interest law firm that intervened for the government, said the enemy combatant designation is needed in situations where investigators know someone is a threat but can't make a case in a traditional criminal court.

If the government loses the argument on Padilla, Samp said, "I think public safety would be endangered."

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