Balance of Powers


The January 12 issue of The Weekly Standard carries a welcome cover story conceding that the Bush administration's handling of accused terrorists raises important civil liberties concerns. The title, "Due Process for Terrorists?," suggests another dimwitted screed that assumes the guilt of everyone detained by the government. But the article is refreshingly candid about the administration's failure to address due process complaints that have been raised by conservatives (including former officials of John Ashcroft's Justice Department) as well as left-liberals and libertarians.

The author, Thomas F. Powers, who teaches constitutional law at the University of Minnesota in Duluth, faults "civil libertarian ideologues, partisan opportunists, and a press almost uniformly hostile on these issues" for exaggerating the administration's willingness to trade liberty for security. At the same time, he criticizes the administration for its "haphazard and inconsistent" approach to issues such as the definition of an "enemy combatant," the use of military vs. civilian tribunals, and the processing of prisoners at Guantanamo Bay.

Powers argues that "the great civil libertarian principle of Ex parte Milligan–the famous Civil War case that retroactively condemned Lincoln's excessive use of military tribunals in the North–should stand: Civilian courts should be preferred wherever possible." His suggestions–including civilian review of Guantanamo cases and a "terrorism court" that would give defendants most of the usual protections while making special provisions for sensitive information and the security of witnesses, judges, and jurors–are worth discussing (although much will hinge on the details). More important is the acknowledgment, by a defender of the Bush administration in a magazine that has enthusiastically supported the War on Terror, that "the American people cannot be expected simply to give the government the benefit of the doubt forever, agreeing that seemingly extralegal measures are justified."