Above the law: president Bush & the Constitution.

The Abu Ghraib prison scandal casts a long shadow. Reports of American soldiers' atrocities against prisoners at Abu Ghraib, elsewhere in Iraq, and in Afghanistan have already eroded Americans' support for the Iraq war, emboldened opposition abroad to the "Bush Doctrine" of preemptive military action, and threatened the president's reelection campaign. Within a few weeks we will learn whether the shadow of Abu Ghraib extends as far as the United States Supreme Court. The justices soon will announce decisions in two groups of cases that challenge the government's confinement of alleged "enemy combatants." While these cases present complex and even arcane questions of law, they ultimately turn on a simple and very important question of democratic principle: To what extent should we trust the president to conduct military affairs without any legal check or oversight?

The first group of enemy-combatant cases presents claims by sixteen foreign nationals captured in Afghanistan and imprisoned at the U.S. base in Guantanamo Bay, Cuba. The military has held these men for more than eighteen months without charging them, only recently permitting them limited contact with lawyers. The detainees' lawsuit asks the government to inform them of the charges against them and to allow them access to their families and to counsel. The Bush administration defends the indefinite detentions on the ground that these men, as foreign nationals captured and detained abroad, have no rights under the U.S. Constitution. Accordingly, the administration denies the federal courts' jurisdiction to even consider the claims. To give these prisoners access to U.S. courts, the administration asserts, would extend full constitutional protection to anyone in a country under U.S. military control. To the claimants' contention that Guantanamo Bay is U.S. territory, the administration responds that the Cuban government, not the U.S., holds sovereignty in Guantanamo.

The second group of cases, unlike the first, involves the rights of U.S. citizens. The government arrested Yaser Esam Hamdi and Jose Padilla on suspicion of planning terrorist actions on behalf of Al Qaeda and designated them "enemy combatants." For more than two years, the military has held Hamdi and Padilla in South Carolina. The prisoners challenge their detention as legally baseless, emphasizing that no neutral authority has reviewed the administration's unilateral decision to deprive them of liberty. The government declares that our nation's present "war on terrorism" empowers the president to identify and detain "enemy combatants" without any procedural checks. The argument relies heavily on Congress's 2001 authorization for President George W. Bush to use "all necessary force" to fight the terrorist threat. Ultimately, however, the administration insists that military detention of Hamdi and Padilla does not require congressional authorization. The state of war, the administration argues, activates "inherent powers" that the Constitution grants the president as commander-in-chief, including the authority to identify and detain citizens who threaten national security. In these cases, the administration warns that observing the ordinary niceties of criminal law in wartime would severely undermine efforts to protect the American people.

As the administration frames these two groups of cases, they would appear to have relatively little in common. The Guantanamo cases present the question whether and to what extent constitutional rights extend beyond U.S. borders. Hamdi and Padilla, in contrast, present a question about the substantive limits, if any, to presidential power in wartime. From the prisoners' standpoint, however, both groups of cases arise from unjust denials of liberty, and closer scrutiny of the administration's arguments reveals the cases' essential similarity. In both, the administration casts the courts and judicial process as the enemies of national security. If foreign prisoners abroad possess constitutional rights, then courts will prevent the military from keeping order in war zones; if native "enemy combatants" can avail themselves of procedural protections, then courts will prevent the president from protecting the people. The administration's plea boils down to three words: Trust the president.

Somewhat ironically, the administration's assault on judicial authority mines a strong vein of judicial precedent. Federal courts traditionally have shown great reluctance to interfere with presidential decisions to imprison people during wartime. Most notoriously, in the 1944 case of Korematsu v. United States, the Supreme Court deferred to military discretion in refusing to interfere with the government's wholesale internment of Japanese Americans. The Bush administration, understandably, does not purport to rely on Korematsu. Instead, in the Guantanamo cases, it cites a different World War II-era decision in which the Court dismissed German nationals' challenges to their imprisonment by the U.S. military in postwar Germany. In Hamdi and Padilla, the administration cites yet another World War II case that recognizes as a matter of "universal agreement and practice" the government's prerogative to identify and detain enemy combatants in wartime. The administration stakes its case for unbridled presidential power on the Court's willingness to read these precedents broadly and follow them uncritically.

Rarely, however, has the executive branch provided more vivid evidence about the danger of blindly trusting presidential and military judgment than we have all seen in recent weeks. Perhaps the administration can convince the Court that precedent supports, and that the tragic but distant error of Korematsu need not mitigate, the power of a wartime president and military authorities to imprison people with impunity. Even if the Court follows the administration that far, however, it cannot easily dismiss lurid scenes of abused and humiliated Iraqis, the subsequent finger pointing and recrimination within the military and the administration, and the sobering chorus of international condemnation. As our preeminent arbiter of constitutional principles, the Court possesses a unique legitimacy to check elected leaders' inevitable propensity to abuse their power. As they decide Hamdi, Padilla, and the Guantanamo cases, the justices need to consider the consequences of the administration's demand that courts--that all of us--shut up and trust our president.

If the administration gets its way in the Guantanamo cases, no authority will have oversight over anything the U.S. military does in Iraq, Afghanistan, or any other country to which it lays siege. Abuses like the torture and humiliation of prisoners will be left to the military authorities' self-policing. Of course, military occupation requires both allowance for executive discretion and recognition that the occupied population must temporarily sacrifice some of its rights. Surely, however, the Court can develop a legal doctrine that respects those imperatives while enforcing the most basic standards of due process. The administration's assertion of military autonomy looks even more radical in light of the political reality of Guantanamo Bay, a U.S. military preserve in a country our government labels an enemy. The technical fact of Cuban "sovereignty" cannot mask the practical reality that the United States maintains, in the words of its 1903 perpetual lease agreement with Cuba, "complete jurisdiction and control" over every inch of its base. If the administration prevails in these cases, Guantanamo and similar U.S. military facilities abroad will become lawless preserves to which the government can farm out tactics our courts would prohibit. Everything is permitted, as long as it happens offshore.

The administration's positions in Hamdi and Padilla carry even more startling consequences. In these cases the president is claiming nothing less than the authority to imprison any U.S. citizen indefinitely--based on nothing more than an assertion that the prisoner is an "enemy combatant." Next to this power grab, the administration's ramming the U.S.A. Patriot Act through a shell-shocked Congress in 2001 looks like a civil-rights rally. The administration at least appears to acknowledge judicial authority to review "enemy combatant" detentions on writs of habeas corpus, but its boundless conception of the president's substantive power to detain, combined with the Court's own evisceration of federal habeas jurisdiction over the past two decades, would render that authority meaningless. In periods of war and national emergency, courts should give the executive branch added latitude to protect the public from domestic threats. Such periods, however, breed suspicion and paranoia as surely as real threats. Accordingly, they impose on courts a heightened obligation to perform their constitutional function of ensuring presidential compliance with bedrock constitutional procedures.

At the oral arguments in Hamdi, Padilla, and the Guantanamo cases, several of the justices expressed doubts about the administration's accounts of the relevant legal precedents. Now the Abu Ghraib atrocities serve, among many other things, to remind us that law is less about precedent than about power--who holds it and what, if anything, stands in its way. These cases offer the Supreme Court an opportunity to make clear that the president, even in his capacity as wartime leader, does not possess unchecked power to deny Americans or those under U.S. control the legal protections we all take for granted. How the Court handles that opportunity will send the world a forceful message about whether the most powerful nation on earth knows how to restrain itself and about how seriously we take our commitment to the rule of law.

Gregory P. Magarian is associate professor of law, Villanova University School of Law.