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Crisis of ConfidenceThe latest terror ruling suggests that the courts do pretty well in a crisis.

By Dahlia Lithwick
Posted Tuesday, June 12, 2007, at 6:43 PM ET

It's tempting to frame yesterday's 4th Circuit decision in al-Marri v. Wright—the case of the last known enemy combatant detained in the United States—in one of several old and familiar ways. By a 2-1 margin, a panel of the Virginia-based appeals court ruled the president cannot label a resident legal alien an "enemy combatant" and lock him up forever in military custody. Some of today's papers try to frame this as yet another fight between two Clinton-appointed judges and a Bush appointee. Others can and will cast this as a conflict between President Bush's effort to militarize domestic crime-fighting and the judiciary's attempt to micromanage his war. But the al-Marri decision also highlights a more subtle conflict that underlies our debates about how to fight the war on terror: whether to look backward or forward.

Almost from the outset, one of the Bush administration's central complaints about using a traditional legal model to try terrorists was that the process is too backward-looking, reactive, and slow. The government needed more flexibility, we were told, to act pre-emptively. It needed a new anticipatory model that would interrupt future terror plots as opposed to reacting to completed ones. That's why so many of the administration's subsequent legal strategies—from authorizing coercive interrogations to sanctioning indefinite detentions to doing away with warrants—were rooted in the notion that it was more important to deter future attacks than to punish criminals. And it was understood and accepted that punishing criminals would be harder to do someday when courts were confronted with tortured confessions or warrantless searches.

Now, however, we're looking at the administration's claims from a different vantage point: There have been no significant attacks since 9/11. For almost six years we have lived in the shadow of Bush's defensive crouch, and nothing has happened. Right or wrong in the end, the president's insistence that there is simply no time for sober debate and tedious legal head-scratching become less credible every month that another terrorist attack fails to materialize. And perhaps that is why the passage of all this time hangs so heavily over Judge Diana Gribbon Motz's majority opinion in al-Marri.

Motz opens by invoking "over two centuries of growth and struggle" in America and segues quickly to the defendant who was picked up "more than four years ago." The words indefinite and indefinitely appear over and over in the decision, as do the "four years" he has been held by the military and the "16 months" he spent in isolation in the brig. In Motz's hands, the story becomes one of time dragging on, while government lawyers idly push papers from one jurisdiction to another. And in her telling, time essentially stopped altogether for al-Marri on June 23, 2003, when President Bush scrawled his name on an order determining that the defendant was an "enemy combatant." From that moment on, the government's position has not changed. For four years, the president's been coiled up and ready to fight the 9/11 attackers.

The most striking note in the 4th Circuit's decision yesterday is not that court's obsession with the past. That has become the president's domain. The court, by contrast, is focused on the future: on creating clean legal lines for the next enemy combatant case. Motz's opinion detangles the constitutional and statutory rights of habeas corpus; it parses the Military Commissions Act in order to separate "properly detained" enemy combatants from improperly detained ones. It struggles with the role of a Combatant Status Review Tribunal—the government panels that determine whether detainees should be held or freed, and what it means for a detainee deemed to be "awaiting" such a review. The majority struggles to understand the legal categories created by the MCA, by prior cases such as Hamdi and Padilla and Hamdan. It strives to grasp the contours of the president's authority under the Authorization of Use of Military Force that Congress passed in 2001, allowing the president to retaliate against the 9/11 attackers.

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Dahlia Lithwick is a Slate senior editor.
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