Jose Padilla and Yaser Hamdi are already there. For two years, the two men -- both U.S. citizens -- have been imprisoned in U.S. Naval brigs in Virginia and South Carolina. They have not been charged with any crime. They have not been allowed meaningful access to counsel. They have not been allowed to see their families.

Padilla was arrested on May 8, 2002, at Chicago's O'Hare Airport. Attorney General John Ashcroft announced that Padilla had been involved in an "unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." But Ashcroft's Justice Department didn't charge Padilla with any crime. Instead, he was held in custody in New York under the federal "material witness" statute, a law that allows the government to detain individuals who might otherwise flee before testifying in criminal cases. As an inmate in the criminal justice system, Padilla was afforded the rights the Constitution guarantees. He was appointed a lawyer, and he was allowed to meet with her in private.

But when a federal judge in another case held that the government could detain "material witnesses" only for trials -- not for investigations, as the government was holding Padilla -- the Bush administration apparently grew nervous that its inmate might go free. Two days before Padilla's lawyer was to argue that he must be released, the government abruptly transferred Padilla out of the criminal justice system and into the hands of the Department of Defense. Padilla was moved from a jail cell in New York to a Navy brig in South Carolina. By the time he arrived, his rights were gone.

Yaser Hamdi was never given such rights to begin with. Like Padilla, Hamdi is a U.S. citizen. But unlike Padilla, he was taken into custody outside the United States and never became part of the criminal justice system. According to the government, Hamdi "surrendered" to Northern Alliance forces while those forces were fighting the Taliban near Konduz, Afghanistan, in late 2001. As government officials note at every opportunity, Hamdi allegedly carried an AK-47 at the time of his "surrender."

The Northern Alliance turned Hamdi over to U.S. troops. The Department of Defense subsequently transferred Hamdi to Guantánamo Bay, then to the U.S. Naval Brig in Norfolk, Va., and then to the U.S. Naval Consolidated Brig in Charleston, S.C. All told, Hamdi has been in U.S. custody for nearly two and a half years. During that time, he has been allowed a single visit by a representative of the International Red Cross and what his lawyers call "the infrequent exchange of censored letters with his family." He was allowed to meet with lawyers only once -- on Feb. 3, 2004, more than two years after he was taken into custody, and even then with government monitors listening in.

In briefs filed with the Supreme Court, the Bush administration makes the circular argument that "enemy combatants" like Hamdi and Padilla aren't entitled to counsel because the government hasn't charged them with any crime. Moreover, while Padilla apparently met with counsel without dire consequences early on in his case, the administration now says that providing "enemy combatants" the right to meet with lawyers would create unacceptable risks. Maybe they would use their lawyers as conduits for messages to al-Qaida. Or maybe allowing them access to lawyers would disrupt the feelings of desperation that might otherwise make them believe that they need to cooperate with their interrogators if they ever want their freedom.

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