Nice to see Tony Lewis writing a guest column in the NYT. I miss his voice for civil liberties greatly, especially now.When the Constitutional Convention of 1787 proposed a new federal government, many Americans feared tyranny. James Madison told them that the Constitution had a "precaution" against that possibility: separation of the government into legislative, executive and judicial branches. If one of the three overreached, he wrote in the Federalist Papers, another would stop the abuse of power.
Madison's theory is about to be profoundly tested. The Supreme Court has agreed to hear challenges to two of the Bush administration's most sweeping claims of power — the power to declare any American citizen an "enemy combatant" and detain him or her indefinitely without trial, and the power to hold the alien captives at the American military base at Guantánamo Bay, Cuba, without a chance for them to challenge the basis of their imprisonment in any court.
Times of war and national crisis have led presidents before George W. Bush to claim extraordinary power. Abraham Lincoln suspended the writ of habeas corpus during the Civil War, though the Constitution indicated that only Congress could take that action. In 1942 Franklin Roosevelt ordered 120,000 men, women and children of Japanese descent removed from their homes and confined to camps.
The Supreme Court has usually been reluctant to intervene. When the Japanese relocation program reached the court in 1944, a majority declined to look past the military judgment that Japanese-Americans might be disloyal, though events had proved that false. In 1861 Chief Justice Roger B. Taney called the suspension of habeas corpus unconstitutional and sent a copy of his statement to President Lincoln, but the full court never considered the issue during the war.
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http://www.nytimes.com/2004/01/16/opinion/16LEWI.html
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