Cara Thanassi, a legislative advisor for the international aid group CARE, said the unilateral nature of the detention designations is particularly dangerous for those who work in organizations like hers. "It would expose aid workers in combat zones to the possibility of being indefinitely detained without any opportunity to have their detention reviewed by a competent tribunal," she said in a press conference in Washington last week. Thanassi said that she is concerned not just that her colleagues might be detained by the United States, but that U.S. policies denying detainees the right to judicial review could be used as precedent -- or payback -- by other countries as well.

In the criminal justice system, procedural safeguards protect the wrongly accused. Even in a minor criminal case that carries the risk of only a short prison sentence, a defendant has the right to challenge the evidence against him, to confront and cross-examine witnesses. But in the cases of Hamdi and Padilla, the government has relied solely on the two-page designations signed by George W. Bush and on brief declarations by Michael Mobbs, a "special advisor" to an undersecretary of defense. In the Padilla case, the Mobbs declaration alleges that Padilla met with and received training from al-Qaida members and "was sent to the United States to conduct reconnaissance and/or other attacks on their behalf." But the allegations rely extensively on third-hand reports of what confidential informants allegedly said, and sometimes not even that. At one point, the Mobbs declaration says only that "it is believed" that al-Qaida members directed Padilla to conduct reconnaissance or attacks in the United States. Believed by whom, special advisor Mobbs does not say.

Because neither Bush nor Mobbs has any firsthand knowledge about Padilla or Hamdi, the actions in which they were allegedly engaged or the circumstances of their capture or detention, their statements about those subject matters are hearsay. In a criminal case, they would be inadmissible as evidence. But in the Hamdi and Padilla cases, these hearsay statements alone provide the sole basis for detention of U.S. citizens -- and indefinite detention at that.

In the government's briefs, Olson dismisses the notion that Hamdi and Padilla might be held "indefinitely." But as the administration concedes, in the war on terror -- a war with no single enemy, a war where there is no one whose "surrender" might signify a clear end to hostilities -- it is impossible to know what event might trigger the end of detention. As with the reason for holding Hamdi and Padilla in the first place, the administration advances a "trust us" argument on the length of their detentions. Olson writes: "The military has made clear that it has no intention of holding captured enemy combatants any longer than necessary in light of the interests of national security ..."

During oral arguments last week in a case concerning the rights of noncitizen detainees held at Guantánamo Bay, the justices' questions of counsel suggested that there may be little tolerance on the court -- at least among the four liberal-leaning judges and Republicans Anthony Kennedy and Sandra Day O'Connor -- for leaving so much discretion in the hands of the administration. Mincberg was at the court for the argument last week, and he said he left feeling cautiously optimistic that a majority would push back against the administration's positions on noncitizens and citizens alike. "I'm hopeful that the court will not uphold this kind of unilateral power," he said.

Cato's Lynch is also hopeful, but worried. "It's an entirely new realm of law that is being tested here," he said. "We have constitutional protections pertaining to searches and arrests, pertaining to lawyers and imprisonment. If all of that is put away in a box that says, 'That's only for criminal matters involving civilian authorities, and these things don't apply to the Department of Defense,' then the implications are enormous with respect to liberty for Americans and the way in which that liberty is guaranteed."

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