The Bush administration’s effort to create a separate legal system for the war on terrorism may be foundering.
Consistent resistance from the U.S. legal establishment has led to court rulings against the government in a series of cases over the past three years involving enemy combatants held both on the American mainland and the naval base at Guantanamo Bay, Cuba. As a result, the approach promoted by President Bush may not outlast his presidency. What to do with some 385 detainees now in Guantanamo may be one of the first questions — along with how to handle the Iraq war — that a new president will have to tackle in January 2009.
Skeptical civilian and military courts, using language both sweeping and technical, have blocked the government’s contention that to fight terrorism the president can invoke military powers that supersede traditional legal protections. None of these setbacks has resulted in the immediate release of prisoners, but they raise questions about the long-term viability of the legal regime.
The latest blow came Monday, when the federal appeals court in Richmond, Va., ruled illegal the indefinite military detention of a U.S. resident arrested in Peoria, Ill. In its opinion, the court warned that embracing the president’s argument “would have disastrous consequences for the Constitution — and the country.”