http://www.cbsnews.com/stories/2003/11/17/...ain583988.shtml
Litmus Test For Presidential Power
NEW YORK, Nov. 18, 2003
(AP) 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.