However, as a practical matter, who is

Secret arrests, prolonged detention without charges, and numerous other
"emergency" powers place us on a slippery slope.  If we start with rounding
up all the suspicious middle eastern types on expired visas (or a poor Texas
doc that just happened to have airline reservations for his family), what's
to prevent us from rounding up all the right-wing loonies next?  Or if you
publish a particularly critical editorial (or letter to the editor) which is
overly sympathetic to Palestinians?

I think we've seen unjustified assumptions of power in every major conflict
of our nations history.  Abe Lincoln suspended habeas corpus during the
civil war.  Franklin Roosevelt interred the West coast's Japanese-Americans
and had at least one military tribunal that executed German sabateurs.

We've always returned to our founding principles, but I'd prefer our
government officials would READ the document they swore to uphold and defend
and then make their decisions using a cautious interpretation.

26. Do you think that the Bush administration has gone too far, been about right, or
not gone far enough in restricting people's civil liberties in order to fight
terrorism?
Gone too far  Been about right  Not gone far enough   No opinion
   10              60                    23                4

http://usatoday.com/news/attack/2001/11/28/poll-results.htm

War creates some interesting problems for a Republic that is
founded on protecting the liberties and rights of its citizens. If
too much attention is given to the niceties of due process, the
enemy gains an advantage. If due process is completely abandoned
then our liberties and rights are in peril. This is one of
the infelicities of war.

Wake up lad! We are at war!

: Military tribunals are not judicial bodies. They are set up persuant
: to acheiving war aims and clearly within the perview of the powers
: of the Commander in Chief. See Art II.
        I
        Once again, this is *not* how the law has been interpreted in the
past. The SUpreme Court has ruled, time and time again, that IT is the
"supreme court of the land" *regardless* of what article of the
constitution is being quoted. For example, presidents have argued that
the Supreme Court has not standing to oversee the "military" justice
system. But the Supreme Court has ruled otherwise, and thus military members
can appeal their cases all the way to the Supreme Court. The Supreme
Court 'trumps' and oversees the Court of Military Appeals -- the military
and/or executive branch doesn't get "its own" totally seperate system.
The Supreme Court has specifically cite (tho I don't have the citation
handy) the whole "Article II" argument and ruled it wrong.

        Note that in the World War II case so often cited, the Supreme
Court heard the case and *then* ruled that in *those* circumstances the
tribunals in question were legal. What is being argued now is that the
Supreme Court can not even *hear* the case to rule on it. Rather than
giving a stamp of approval (as in WWII) or disapproval (who knows?),
the Supreme Court would be a complete outsider with no power at all.

        This is just another round in a long battle to expand the powers
of the executive branch, and IMHO is the biggest challenge to judicial
authority since FDR's "court packing" proposal. But at least he didn't
just declare he had the power to do it, and congress rightly (IMHO) held
him in check.

   "The Constitution thus invests the President as Commander in Chief with the power
to wage war which Congress has declared, and to carry into effect all laws passed by
Congress for the conduct of war and for the government and regulation of the Armed
Forces, and all laws defining and punishing offences against the law of nations,
including those which pertain to the conduct of war." . . .

  "We are concerned only with the question whether it is within the constitutional
power of the national government to place petitioners upon trial before a military
commission for the offenses with which they are charged. " . . .

: Steven James Forsberg wrote:

:> giving a stamp of approval (as in WWII) or disapproval (who knows?),
:> the Supreme Court would be a complete outsider with no power at all.

: Read Art III. The Supreme Court (with a few minor exceptions)
: has appelate jurisdiction and can only certify * cases * of law
: and fact.  The Supreme Court is not constituted as a jury on the
: constitutionaliy of laws in the absence of a case. So what case on
: appeals would you expect the SCOTUS to certify?

        It is true that the court does not give advisory opinions and that
until a case is brought this all an exercise in hypothesis. But the
President is arguing that such cases can *not* be appealed to the Supreme
Court.  What if the Supreme Court did agree to hear such a case? Should
the president ignore the courts ruling (whatever it may be)? Should he
take steps to prevent the case from ever being put before the court?
        And, of course, there are significant differences in this case
as opposed to the previous ones cited (which would no doubt be part of
the appeal). For example, the WWII cases were held after Congress passed
a Declaration of War. Now, you can argue that the whole idea of "declaration
of war" is obsolete --- but no one has bothered to change the constitution.
The courts - not the President - are the ultimate interpreters of teh
constitution. Any president can have his staff draft up an 'opinion' giving
the President just about any power. Until it has passed court muster,
however, its legality is suspect.