Litmus Test For Presidential Power

A panel of federal judges waded into the question of whether the president has the power alone to declare a U.S. citizen an enemy combatant, an issue the Bush administration considers vital in its war on terror.

Three judges from the 2nd U.S. Circuit Court of Appeals suggested Monday that President Bush needs Congressional authorization to indefinitely hold 33-year-old Jose Padilla, accused in a dirty bomb plot and designated an enemy combatant.

Giving such power exclusively to the executive branch with only limited review by the courts, said Judge Barrington D. Parker Jr., would be "a sea change in the constitutional life of this country and ... unprecedented in civilized society."

The three-judge panel is hearing an appeal of a lower-court ruling establishing that Padilla is entitled to see his lawyers and to challenge his designation as an enemy combatant. He has not seen a lawyer in 17 months.

Padilla is accused of plotting to detonate a "dirty bomb," which uses conventional explosives to disperse radioactive materials. The former Chicago gang member was arrested in May 2002 and within days was moved to a naval brig in Charleston, S.C.

In a two-hour hearing just blocks away from the World Trade Center site, Judge Rosemary S. Pooler said the president must go to Congress because it has the power to let the president make a U.S. citizen captured on American soil an enemy combatant.

Deputy Solicitor General Paul D. Clement suggested that the urgency of the war against terrorism necessitated such moves.

"Al Qaeda made the battlefields the United States and they've given every indication they're trying to make the United States the battlefield again," he said.

Pooler recalled witnessing the 110-story towers burning on Sept. 11, 2001.

"If, in fact, the battlefield is the United States, I think Congress has to say that, and I don't think they have yet," she said.

The hearing marked the first time a U.S. government official has said someone such as Padilla could eventually have access to an attorney once the intelligence gathering process was complete.

Jenny Martinez, a Stanford Law School professor who argued on Padilla's behalf, said the government believed its powers were almost limitless.

"Under their theory, they can do this to any American. They can pick up any person off the street and, so long as the president turns in a piece of paper that says that that person is associated with al Qaeda, that person has no rights and the courts are powerless to intervene," she said. "Your honors, that has never been the law in this country and it cannot be the law."

Andrew Patel, another lawyer for Padilla, said the right to court proceedings "must be respected in periods of calm and in times of trouble."

"Your honor, this is the land of the free and the home of the brave. That means something. Those words mean something," he said.

Pooler responded, "As terrible as 9-11 was, it didn't repeal the Constitution, you mean."

The third judge on the panel, Richard C. Wesley, suggested the case shouldn't have been brought in Manhattan. "This should be litigated in South Carolina," Wesley snapped.

The judges weren't expected to issue their ruling for weeks, if not longer. While two of three judges expressed doubts about the government's arguments, they could still opt to refer the case to another court, as Wesley suggested.

Only two other people have been designated enemy combatants since the 2001 terrorist attacks: Ali Saleh Kahlah Al-Marri, a citizen of Qatar who has been accused of being an al Qaeda sleeper agent, and Esam Hamdi, a Louisiana native captured during the fighting in Afghanistan.

By Larry Neumeister