Prudent Check on Detentions
In rulings this week that try to balance liberty and security during a war on terrorism, the Supreme Court was nearly unanimous on two essential points:
• The president has authority to detain terrorist suspects - even Americans - as simply "enemy combatants."
• But he can't do it for too long without letting the detainees ultimately argue for their release before a judge.
"A state of war is not a blank check for the president," wrote Justice Sandra Day O'Connor, for four of the justices.
That's not only a renewed victory for one of the oldest and most basic of rights - habeas corpus, or the right to be brought before a court of law for due process. It's also a victory in the war on terror itself which, after all, is a campaign to assert such liberties against those who would deny them wholesale by force.
But beyond that limited consensus on those two points, the nine justices left a set of befuddling written decisions on exactly how or when the federal courts should second-guess the military on such detentions, especially when the military demands full secrecy in dealing with terrorists.
Their scattered views reflect a similar mix of uncertain opinions among Americans on how much liberty and convenience to sacrifice in order to prevent more terror attacks. And they recall the difficulty the US has had during most wars in reconciling different parts of the Constitution and deciding which branch of government has the upper hand.
While the Supreme Court put its foot down this week against the Bush administration's claim of exclusive control over the detainees, it wisely warned judges to tailor a habeas corpus hearing so as not to add a burden to the executive branch in conducting war.
Justice O'Connor wrote that courts should have a "presumption in favor of the government's evidence," and that even rules against the use of hearsay could be lax. She also hinted that courts might let military tribunals be the venue for a detainee's arguments to be aired. Her most general advice to district judges is to allow "a fact-finding process that is both prudent and incremental."
Her opinion, however, wasn't endorsed by a majority of the court, and it's vague enough that many years and many court cases may pass before the Pentagon knows for sure the limits of its authority.
Each war, each court case, thus fine-tunes the balance between freedom and security. O'Connor's call for prudence is the best call for now.