Padilla could see a charge reinstated

A federal appeals court is weighing whether to restore the only charge against alleged Al Qaeda operative Jose Padilla that carries a sentence of up to life in prison.

Padilla, 36, is a U.S. citizen charged with being part of a North American cell that provided cash, supplies and recruits to Islamic extremists.

A three-judge panel of the U.S. 11th Circuit Court of Appeals on Wednesday heard arguments over the dropped charge, conspiracy to “murder, kidnap and maim persons in a foreign country.” A judge dismissed that charge in August after ruling that it duplicated two other terrorism-support counts against Padilla and two codefendants.

Federal prosecutors argued that the charge was dropped in error, saying U.S. District Judge Marcia Cooke in Miami used the wrong legal analysis.

Federal public defender Paul Rashkind, who spoke Wednesday on behalf of all three defendants, said the situation was “unprecedented and peculiar.” He said the government could have just redrawn the indictment and avoided an appeal.

“Nothing here is final, because the government can turn around tomorrow and re-indict this case,” he said.

Federal prosecutors declined to comment after the hearing. When questioned by U.S. Circuit Judge Gerald Bard Tjoflat in court, they said the dismissal of any of the counts was “an incorrect remedy.”

None of the defendants was present in court. The penalty for the other two counts against them is a maximum of up to 20 years in prison.

The terrorism case is scheduled for trial Jan. 22 in Miami, but Cooke has said she will not allow the trial to go forward until the question before the 11th Circuit is settled. Cooke scheduled a hearing for Friday to discuss the status of the case.

Padilla was arrested in 2002 at Chicago’s O’Hare International Airport and was originally accused of plotting to detonate a radioactive “dirty bomb” in a U.S. city.

President Bush designated him an enemy combatant, and he was held without criminal charge at a Navy brig in South Carolina for 3 1/2 years, until he was added to a Miami terrorism-support case in late 2005.