…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.
The article says that part of the debate is about who gets to declare someone an enemy combatant. The administration wants the power to reside solely in the president, with no checks save re-election. Says Solicitor General Theodore Olson: “Who will finally decide [whether the decision to designate someone an enemy combatant is a right or just decision]? Will it be a judge, or will it be the president of the United States, elected by the people, specifically to perform that function, with the capacity to have the information at his disposal with the assistance of those who work for him?”
Personally I think the Constitution has been pretty clear from the start that the job of the judiciary is to make the decision that the executive branch is acting rightly and justly. But then, what do I know? I’m just a Grouchy Blogger.