Here's what former Solicitor General Ted Olson -- the architect of the Bush administration's executive power grab -- told the Washington Post back in 2002:
- "At the end of the day in our constitutional system, someone will have to decide whether that [decision to designate someone an enemy combatant] is a right or just decision," Olson said. "Who will finally decide that? 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?"
And what will be this all-knowing executive's criteria? Well, here's what else Olson said:
- In a recent legal brief, Olson argued that the detention of people such as Hamdi or Padilla as enemy combatants is "critical to gathering intelligence in connection with the overall war effort."
Nor is there any requirement that the executive branch spell out its criteria for determining who qualifies as an enemy combatant, Olson argues.
"There won't be 10 rules that trigger this or 10 rules that end this," Olson said in the interview. "There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances."
In other words, it will be at George W. Bush's whim. With a little help, no doubt, from Karl Rove and Dick Cheney.