The White House last month slammed the lower court ruling in the case of Jose Padilla, aka Abd Allah al-Muhajir, as flawed and the Justice Department said it would seek a stay and further judicial review of the case.

Padilla who is also known as Abd Allah al-Muhajir is accused of planning to set off a radioactive explosve device.

The Second Circuit Court of Appeals said President George Bush could not order an American seized on US soil to be detained as an enemy combatant. It said Padilla should be moved from a military to a civilian jurisdiction.

"We believe the Second Circuit ruling is troubling and flawed," White House spokesman Scott McClellan said after the ruling.

'Authority to act'

On Friday, a brief filed by the Justice Department with the Supreme Court, listing Rumsfeld as sole petitioner, said the lower court ruling "undermines the constitutional authority of the Commander-in-Chief to protect the United States against additional enemy attacks launched within the nation's borders.
 
"Those concerns are particularly acute in the current conflict, waged against an enemy that operates in secret and plots surreptitious and large-scale attacks on civilian targets."

"In times of war, the president must have the authority to act when an individual associated with our nation's enemies enters our country to endanger American lives"

US Justice Department

In announcing its intention to appeal last month, the Justice Department said: "In times of war, the president must have the authority to act when an individual associated with our nation's enemies enters our country to endanger American lives."
 
Department spokesman Mark Corallo said when Congress gave the president authority to act against al-Qaida in a special resolution after the 11 September 2001 attacks, it clearly "recognised that al-Qaida and those who now do its bidding are a continuing threat to the United States."

The department said Padilla "was closely associated with al-Qaida and trained and worked under their direction."

No formal charges

In a two-to-one ruling, the three-judge appeals bench said Padilla, who is of Puerto Rican origin, suspected of plotting a radioactive bomb attack on US soil with al-Qaida, should be released from a Navy brig in South Carolina within 30 days.

Padilla, arrested 8 May 2002, has been held at the facility without formal charges since June of that year without access to legal counsel.