Court to rule on 'enemy combatant' label
Christian Science Monitor
Posted: Monday, November 17, 5:35pm EST

A federal appeals judge said Monday it would be "a sea change" in the Constitution to allow the Bush administration to designate a US citizen suspected in an alleged dirty bomb plot as an enemy combatant. In a critical showdown between the government and civil rights lawyers, two members of a three-judge federal panel seemed hesitant to embrace the government's reasoning for why Jose Padilla, 33, should be held indefinitely without access to a lawyer and without being charged.

Padilla, a Muslim, is accused of plotting with Al Qaeda to detonate a "dirty" bomb," which uses conventional explosives to disperse radioactive materials. The former Chicago gang member was taken into custody in May 2002, and has spent most of the time since then in a naval brig in Charleston, S.C. In the two-hour hearing before the appeals panel Monday, 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. But Judge Barrington D. Parker Jr. said he believed the power to designate a US citizen as an enemy combatant rested with Congress, rather than the president.

Giving such power to the executive branch with only limited review by the courts, he said, would be "a sea change in the constitutional life of this country and ... unprecedented in civilized society." Said Judge Rosemary S. Pooler, another member of the panel: "If, in fact, the battlefield is the United States, I think Congress has to say that, and I don't think they have yet." Later, she added, "As terrible as 9/11 was, it didn't repeal the Constitution."