The U.S. Supreme Court is considering two cases that could have significant constitutional consequences not for how many people they affect but for how long they may affect a few.
In the cases of Yaser Esam Hamdi and Jose Padilla, both American citizens accused of being "enemy combatants" in the war on terrorism, the court is confronting a rare conflict between the president's authority to defend national security and an individual's right to a trial.
Both were jailed and held for some 18 months without access to attorneys and courts. The key difference in their cases is that Hamdi was caught on a battlefield in Afghanistan, while Padilla was arrested at O'Hare International Airport in Chicago.
Hamdi would appear to have little chance at winning, and a federal appeals court upheld his detention by military authorities. He could be held until the end of the war against terrorism, which could be a very long time.
Padilla, on the other hand, won his round in appeals court on the argument his arrest - on suspicion of plotting to detonate a radioactive bomb - took place on U.S. soil to a U.S. citizen. He may be guilty, but he deserves a trial and the accompanying guarantees of criminal justice, the appeals court said.
The issues here are basic to every American's belief under the 5th Amendment that he or she cannot be "deprived of life, liberty and property without due process of law." The issues are also as broad as the president's and Congress' power to declare war, and whether the judicial branch of government even has the authority to review such matters.
In the wake of the Sept. 11, 2001, terrorist attacks, Congress authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons."
The sweeping generality of that authorization is without precedent, but it is not without limits.
The 2nd Circuit Court of Appeals determined - correctly, in our opinion - that Congress didn't not give the president explicit permission to have the military detain American citizens on American soil.
"The president, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from a zone of combat, as enemy combatants," the 2nd Circuit ruled.
If the allegations against Padilla are true, as determined in court, the United States has adequate remedy - which itself may be found in the Constitution, Article 3: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." The penalty is death.
