Court says no to an imperial presidency

The court was clearly reacting to the challenge posed by the president's attempt to bypass the roles of the courts and Congress. The justices understood that the president's makeshift system of military commission hearings was part of a larger strategy in which the Bush administration sought to assert presidential supremacy even in areas where Congress and the courts had established mechanisms that could achieve the administration's goals.

For example, the Hamdi opinion established the precedent under which Hamdan was declared an enemy combatant and could have been locked up without a trial indefinitely for the duration of the war on terror. Why, then, did the president see fit to charge Hamdan with war crimes and risk a confrontation with the courts, especially when, were Hamdan to be convicted, his prison term would likely be 10 years or less? The only sensible answer to this question is that Bush was seeking to establish the fact that he alone could exercise such extraordinary power.

THE COURT, REACTING to this presidential claim, swept aside all of the procedural barriers in order to get to the heart of the matter: The United States remains a constitutional republic.

The specific rights of enemy combatants, war criminals and others captured and tried in the war on terror will have to be worked out, case by case, as the conflict with Al Qaeda unfolds. What the Supreme Court has established in the Hamdi and Hamdan cases is that these extraordinary governmental powers will be exercised on a shared basis, not by an imperial presidency.

The implications of this judicial attitude are substantial for future battles over, for example, the National Security Agency's electronic surveillance program, conducted with neither congressional authorization nor judicial oversight. It may be that we won't be able to rely on the Supreme Court to enforce constitutional rights in the face of liberty-restricting defiance from the other two branches of government. But Thursday's bold decision tells us that the president will need firm congressional support before the judiciary will join forces to make it a threesome.