DO THE DUE :

How Congress Should Fight Terrorism -- And Avoid Martial Law (Stuart Taylor Jr., June 17, 2002, National Journal)

According to my sources (whom I hope are mistaken), administration lawyers are preparing to argue that the military has virtually unlimited power to detain, virtually incommunicado, for as long as the president chooses, not only these two but also you, me, the Muslim cleric down the street, and anybody else whom the president declares to be an "enemy combatant." In this view, the courts have no power to order a detainee to be released even if the detainee has compelling evidence that his arrest was a terrible mistake.

If that is the administration's position -- and it would be consistent with its so-far sketchy statements about the military detentions of Abdullah al-Muhajir (aka Jose Padilla), the Brooklyn-born suspected dirty-bomb plotter; and Yasser Esam Hamdi, another U.S. citizen -- the courts should reject it. But they should also recognize that presidential decisions on military matters are entitled to great deference. And the availability of the military-power option paradoxically reinforces the need for Congress to make the president's other option -- the civilian justice system -- more amenable to preventing terrorism.

The first reason to adopt new legislation is that, as I argued in my June 8 column, the current legal restraints on the government's investigative powers are unduly stringent, and are partly responsible both for our failure to prevent the September 11 hijackers and for our unnecessarily great vulnerability to future attacks. The second reason is that such legislation may be the only way to prevent the administration from drifting into ever-more-sweeping use of military power on American soil, perhaps including warrantless military searches, wiretaps, spying, and detentions.

This is a fair example of why Stuart Taylor is the best legal affairs journalist in America. He's a fierce civil libertarian but because he is able to take seriously the reality that the President of the United States has a primary obligation to protect us from enemies foreign and domestic, he is able to get past the simple bleating about due process and propose changes that will allow the process to remain due while also meeting the nation's need to stop terrorists. Posted by Orrin Judd at June 18, 2002 9:46 PM