EFL.
The instant reading of yesterdayâs Supreme Court rulings on terror suspects is that they were, as the Associated Press asserted, "a setback to the Bush Administrationâs war against terrorism."
In certain segments of the press, a warm sunny day with not a cloud in the sky would be reported as "a defeat in the Bush âwarâ on âterror.â"
After reading the opinions, weâd say itâs more accurate to call them a modest but important victory for the Presidency. The Courtâs three rulings will surely complicate U.S. detention policy, at least at the margins. But at the same time they uphold the longstanding and proper deference that the Supreme Court has shown throughout its history to the executive branch on national security, especially in wartime. . . .
Most important, the Court upheld the authority of the Commander-in-Chief to detain enemy combatants, including U.S. citizens. Thatâs the key finding of Hamdi, and the implicit basis of Padilla, which the Court threw back to the lower courts on jurisdictional grounds.
Itâs true that in its Guantanamo ruling--Rasul v. Bush--the Court has opened the door to a flood of litigation by ruling that both U.S. citizens and foreigners detained as terrorists can challenge their treatment in the federal courts. This pretty much guarantees that the 600 or so Guantanamo detainees will bring 600 or so habeas corpus cases--perhaps in 600 or so different courtrooms, with 600 or so different judges demanding 600 or so different standards of what evidence constitutes a threat to the United States. Justice Antonin Scaliaâs dissent shreds the majorityâs messy reasoning.
But the solution here is for Congress to step in with legislation consolidating all of the Gitmo cases in a single court. Arlington, Virginia would be a good choice, as thatâs where the detaineesâ ultimate warder, Defense Secretary Donald Rumsfeld, is located. It also has the advantage of being located in the jurisdiction of the Fourth Circuit Court of Appeals, which has already examined these issues in a serious way. At the same time, however, yesterdayâs Hamdi decision suggests that the courts must give considerable deference to the executive in handling these habeas petitions. While Hamdi concerned a U.S. citizen-detainee, it isnât likely that the non-citizens at Gitmo can expect more favorable treatment. And anyone who reads Justice Sandra Day OâConnorâs plurality opinion can only conclude that Yaser Esam Hamdi--or anyone else--is unlikely to be sprung from detention anytime soon. . . .
. . . the burden is on the petitioner in these cases to prove that the governmentâs designation is wrong. Just to be sure the ACLU gets the point, Justice OâConnor added that "the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting."
Even more striking, Justice OâConnor all but invited the Administration to set up a military court to hear Hamdiâs plea. That suggestion goes a bridge farther than even President Bush has dared. His controversial 2001 order establishing military tribunals to try enemy combatants specifically excluded U.S. citizens even though there is ample legal precedent for their use. The Courtâs ruling is also an implicit suggestion that the military is capable of adequately reviewing challenges brought by the Gitmo prisoners.
All in all, the Court stepped away from the chaos of making judges the arbiters of American security. Thatâs a welcome victory for the Presidency, no matter who wins in November. 
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