A matter of balance.

Byline: The Register-Guard

After the terrorist attacks of Sept. 11, 2001, the Bush administration created a parallel legal universe in which terrorism suspects, including U.S. citizens, can be investigated, interrogated, imprisoned - and even tried and sentenced - without constitutionally guaranteed legal protections.

Congress, created as an equal branch of government, acquiesced with appalling meekness as the administration aggressively expanded its reach and compromised constitutional rights. On its own authority, the administration decided that U.S. citizens could be held without charge or trial or access to lawyers, and that suspected foreign terrorists could be detained indefinitely at Guantanamo Bay and deprived of basic rights.

While Congress abrogated its responsibility to maintain a proper balance between liberty and security, the courts have been less passive. In recent months, the U.S. Supreme Court has agreed to consider two pivotal cases that will help determine the legality of this unprecedented expansion of executive-branch power.

Last week, justices said they will decide whether the president has the constitutional authority to bypass the courts and hold U.S. citizens in military custody. The court will review a federal appeals court ruling last November, which said the president exceeded his authority in the case of Yaser Esam Hamdi. An American citizen of Saudi descent who was captured on a battlefield in Afghanistan, Hamdi has been held in a Navy brig without being charged.

The appeals court ruled that the administration must either charge Hamdi with a crime or release him. The federal government appealed the Hamdi ruling, arguing that the president, as commander in chief, has the unilateral power to take such actions against suspected terrorists.

The Supreme Court may well end up combining Hamdi's case with that of Jose Padilla, another U.S. citizen being held as an enemy combatant. Federal prosecutors have indicated they plan to ask justices by next week to reverse an appeals court decision that ordered the government to either free Padilla from military custody or file criminal charges against him.

Justices also have agreed to hear a case involving nearly 700 "enemy combatants" who have been held without charges or hearings at Guantanamo Bay. After a federal appeals panel ruled that the detainees should have access to lawyers and the U.S. legal system, the administration appealed, arguing that the courts have no jurisdiction.

The Supreme Court regrettably refused to review another federal appeals court ruling from last summer that said the Justice Department did not act illegally when it refused to release the names of more than 700 people, most of them Arabs or Muslims, arrested for immigration violations in connection with the Sept. 11 attacks. None of the detainees was ever charged as a terrorist, and most have since been deported. The Justice Department's inspector general concluded last year that the government had violated a law stipulating that such detentions be limited to 90 days.

The court's refusal to hear this case reinforces the government's preference for secrecy over the well-established right of the public to know what its government is doing. But its agreement to hear the cases involving Hamdi and the Guantanamo detainees offers hope of restoring our government's system of strong and effective checks and balances.

More than two years after Sept. 11, most Americans recognize that the threat of terrorism is real and that the government must take prudent steps to contain that threat. But the Bush administration has gone too far and is operating outside the framework of accountability and control that is essential to our constitutional system of government.