Editorial
Decisions on the cusp of security and liberty

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Even at war, the U.S. government is bound by the law, and the courts determine what the law is. The Supreme Court at least got that part right in three complicated decisions about detainees in the war on terror.

These are historic cases. Each side referred to President Lincoln's prosecution of pro-Confederate "copperheads" during the Civil War, President Truman's seizure of U.S. steel mills during the Korean War, and President Roosevelt's internment of Japanese-American civilians during World War II. In war, security and liberty conflict, and in the long run, the nation requires both.

The court was correct in applying U.S. law to Guantánamo Bay, which Justice Anthony Kennedy declared to be "in every practical respect a United States territory." It ill becomes a constitutional republic to be squirreling away prisoners on foreign bases in an attempt to sidestep its own institutions.

The court was also right to reject the government's claim that prisoners could be kept in detention on a "some-evidence standard," meaning that all the government had to do was to show some evidence. "We have long since made clear," said Justice Sandra Day O'Connor, "that a state of war is not a blank check for a president when it comes to the rights of the nation's citizens."

In the Guantánamo case, the court's moderates and liberals united to rule that prisoners who were citizens of countries at peace with the United States — in this case, Kuwaitis and Australians — could have access to a lawyer and a judge. It was a reasonable ruling; these prisoners have been held for two and a half years.

In the case of Yaser Esam Hamdi, an American captured in Afghanistan and held in a Navy brig in South Carolina, five justices said he could be held but eight said he had the right to sue for release. Justice O'Connor said the government can hold captives from combat without trial for the duration of their particular war — the war in Afghanistan, not the war on terror. Hamdi could request a hearing, at which the government could offer evidence against him, and in which he would have the burden to prove his innocence.

That is a step toward the rule of law, but it is still half a constitutional loaf. The straightest opinion was by Justice Antonin Scalia. He said that if Hamdi had committed a crime, the government ought to charge him and try him in an ordinary court of law, as it had done with John Walker Lindh.

The case of Jose Padilla was the strongest. He is an American who had been arrested in Chicago and also detained indefinitely in a Navy brig. The court's five moderates and conservatives declined to rule, saying that he had complained to the wrong court.

Perhaps as a matter of procedure they were right. Still, it is unfortunate that the Padilla case, like the Pledge of Allegiance case a few weeks ago, was punted. Sometimes the American people need answers, and it is the job of the Supreme Court to supply them. This was one of those times.