Probably the most hotly disputed element of the administration's approach is its contention that the president alone can designate individuals, including U.S. citizens, as enemy combatants, who can be detained with no access to lawyers or family members unless and until the president determines, in effect, that hostilities between the United States and that individual have ended.
Padilla was held as a material witness for a month after his May 8 arrest in Chicago before he was designated an enemy combatant. He is one of two U.S. citizens being held as enemy combatants at the Navy brig in Charleston, S.C. The other is Yaser Esam Hamdi, a Saudi Taliban fighter who was captured by American troops in Afghanistan and sent to the U.S. prison at Guantanamo Bay, Cuba, until it was discovered that he was born in Louisiana.
Attorneys are challenging their detentions in federal court. While civil libertarians concede that the executive branch has well-established authority to name and confine members of enemy forces during wartime, they maintain that it is unconstitutional to subject U.S. citizens to indefinite confinement on little more than the president's declaration, especially given the inherently open-ended nature of an unconventional war against terrorism.
For example, under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen's home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it.
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