Some of the tactics used in fighting the war against terrorism have posed a historic challenge to the American legal system. How far can constitutional rules be stretched to allow measures that might never be considered in more normal times?
In the months since Sept. 11, the courts often have supported extraordinary steps by government prosecutors, such as the use of secret evidence in the Chicago case involving a charity suspected of helping fund terrorists.
But last week, a federal district court judge in New York took the extraordinary step of striking down one of the US Justice Department's favorite antiterrorism weapons: indefinite detention for individuals deemed "material witnesses" for the grand jury probing last fall's terrorist attacks.
The judge, Shira A. Scheindlin, roundly criticized Attorney General John Ashcroft, saying he had misused the material-witness law "to detain people who are presumed innocent under our Constitution in order to prevent potential crime...." She dismissed pending perjury charges against the defendant, a Jordanian attending college in San Diego, because the charges were developed while he was, in her view, illegally imprisoned.
Her ruling is being appealed by Mr. Ashcroft, who called it "an anomaly." Indeed, the attorney general could point to instances in past wars of more extreme curtailment of fundamental rights than anything he has sought. Severe threats to the nation call for unusual if temporary policy shifts. Polls indicate most Americans are ready to sacrifice some civil liberties for added security.
But Judge Scheindlin's ruling shouldn't be thought of as outside the norms of American justice. Courageous stands by independent-minded judges help to keep the system honest especially at a time of public and political pressure to stretch what's legally acceptable.
This ruling may not stand. As Ashcroft notes, other judges have allowed his use of the material-witness law. Still, a strongly worded objection has been entered against the use of open-ended detention without specific charges. That should reassure observers here and abroad that American courts, despite unusual strains, are still a lively part of the system of checks and balances.