Unlimited Presidential Powers

The Justice Department all but told a federal judge this week to take his legitimate concerns about civil liberties and stuff them in the garbage pail. The Bush administration seems to believe, on no good legal authority, that if it calls citizens combatants in the war on terrorism, it can imprison them indefinitely and deprive them of lawyers. It took this misguided position to a ludicrous extreme on Tuesday, insisting that the federal courts could not review its determinations.

This defiance of the courts repudiates two centuries of constitutional law and undermines the very freedoms that President Bush says he is defending in the struggle against terrorism. The courts must firmly reject the White House's assertion of unchecked powers.

The administration's autocratic approach is unfolding in the case of Yasser Esam Hamdi. Mr. Hamdi, who was born in Baton Rouge, La., to Saudi parents, was captured by the Northern Alliance while fighting with the Taliban in Afghanistan. Mr. Hamdi is being held in a Navy brig in Norfolk, Va., without having been charged with any crime and has been denied permission to see a lawyer. Judge Robert Doumar of the federal district court in Norfolk asked prosecutors to submit documents, including interview notes, so he could assess the claim that Mr. Hamdi is an enemy combatant. On Tuesday the Justice Department refused to hand over the documents, saying the courts had no jurisdiction in the matter.

The Bush administration has framed the dispute as being over the separation of powers and the right of the executive branch to oversee the waging of war. The courts have, in fact, given the political branches considerable leeway where wars are concerned. But declaring American citizens to be enemy combatants, and therefore not entitled to basic constitutional protections, is a clear matter of domestic civil liberties. The courts have an obligation to play an active role in reviewing these determinations.

In the case of Mr. Hamdi, the evidence submitted by prosecutors is thin. The government is relying on a two-page affidavit from a Defense Department adviser that simply gives a brief outline of Mr. Hamdi's alleged actions and declares him a combatant. Given the importance of the rights at stake, Judge Doumar was correct to ask prosecutors to hand over supporting materials so he can satisfy himself that the right decision was made.