As Pearlstein acknowledges, the term "enemy combatant" does appear in the 1942 U.S. Supreme Court case of Ex Parte Quirin, but the court mentions the term there only in passing. It offers no definition, and it does not describe the legal protections to which enemy combatants are -- or are not -- entitled. Moreover, Quirin was decided long before Congress adopted a statute prohibiting the imprisonment or detainment of any U.S. citizen except pursuant to an Act of Congress.

Nonetheless, the Bush administration relies heavily on the Quirin decision in the Padilla and Hamdi cases, arguing that it provides solid legal precedent for the administration's detention of citizens whom the president deems enemy combatants -- a term the administration defines as encompassing any individual who "was part of or supporting forces hostile to the United States or coalition partners, and engaged in armed conflict against the United States."

Thus far, the courts are divided on the propriety of the administration's actions. In Padilla's case, the U.S. Court of Appeals for the 2nd Circuit held that the government may not hold a citizen indefinitely simply by declaring him an enemy combatant. In Hamdi's case, the U.S. Court of Appeals for the 4th Circuit reached the opposite conclusion. The 4th Circuit is widely considered the most conservative of the federal appellate courts; Cato's Lynch suspects that the administration chose to detain Padilla and Hamdi in Virginia and then South Carolina precisely because those states are within the jurisdiction of the 4th Circuit, where the administration likely thought it would get the most sympathetic hearing. But even the 4th Circuit has rejected some of the most aggressive variations on the administration's detention justifications.

In the briefs it has filed in the Supreme Court, the administration argues that the president's authority -- either as commander in chief or under Congress's authorization to use military force in response to the Sept. 11 attacks -- includes the authority to decide who is and who isn't an enemy combatant, with virtually no oversight or scrutiny by anyone outside the executive branch.

While Olson says that a court may be entitled to hear the president's "articulated basis" for designating someone an "enemy combatant, the court can consider only whether what the president says about the citizen satisfies the criteria for "enemy combatant" status. The detained citizen has no right to challenge the president's version of events, and the courts have no power to consider such a challenge anyway.

"All they have to do is come up with a statement that, in some very broad terms, explains what [the detainee] has done," says Mincberg, of People for the American Way. "They might have gotten the wrong guy. Maybe it was my cousin or somebody that looks like me. When I was 12 years old, there was a kid that looked like me and I got blamed for a lot of things he did. But according to the administration, there wouldn't be any right to contest the determination the president has made."

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