A War President Within the Law

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Tuesday and on April 28, the Supreme Court hears oral arguments in three cases brought by captured terrorism suspects who are asking the nine justices not to give the president a free hand during a national emergency to detain anyone he deems simply an "enemy combatant" without a court review.

The three cases involve hundreds of suspected Al Qaeda and Taliban members being held at Guantánamo Bay, as well as two US citizens.

The high court's decisions, expected by June 30, may not only shift the balance of power between the judicial and executive branches but define whether rights like habeas corpus can be denied during this unprecedented war against stateless terrorists - and perhaps even more so than in the past during traditional wars between nations, as in World War II.

The court's ruling may decide that judges in general are inadequate to discern the particulars of a complex covert war that must be waged in ultrasecrecy. It may just give the president unusual powers to detain anyone in secret or to keep them out of the court system by holding them abroad.

Such a ruling would allow the practice to go on for decades as long as any president sees a need to fight terrorists of one sort or another.

After Sept. 11, Congress gave President Bush the authority to "use all necessary and appropriate force" against terrorists, leaving it up to him to decide who is a terrorist. That authority lies in the Constitution's Article II, giving the commander in chief the power to conduct armed conflict.

But the Supreme Court cannot easily overturn a tradition that goes back to 14th-century English law in which the state must assure a judge that it has given due process to a detained person. To do so would be to demolish a key plank in the Bill of Rights.

The court could just decide that all such detainees be given a hearing before a military review tribunal under the military's legal system, rather than in a civilian court. The Bush administration has started the process for that, which would allow protection of vital secrets. That would retain the exclusive constitutional prerogative of the commander in chief but also provide some legal check on executive power.

Americans need to make many sacrifices during crises like war, but fundamental rights need not be one of them.