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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

(Continued from page 1)

In short, the court does exactly what courts are charged with doing. It spends dozens of pages trying to define the proper "legal category" into which al-Marri fits, so it can determine not just what to do with al-Marri but what to do with all the al-Marris who may pass through its doors in the future. Judge Motz ends by quoting the president telling us that the War on Terror "will continue long after you and I have turned our duties over to others." She quotes Justice Sandra Day O'Connor writing in Hamdi that "if the practical circumstances of a given conflict are entirely unlike" previous wars we have faced, the very notion of detaining one's enemies for the entire duration of the conflict "may unravel."

One can agree or disagree with the court's conclusions on all of these matters, and no doubt plenty of people will do both. But the court can't be faulted for striving to draw straight lines between the scattered new data points that are Hamdi, Padilla, and the relevant statutory and constitutional provisions. That's what it's supposed to do. The government, on the other hand, is frozen in the aftermath of the 9/11 attacks. Its argument, too, rests on a frozen legal contention—that the president has the sweeping statutory or inherent authority to identify and detain "enemy combatants" indefinitely. As the majority opinion notes, that theory is becoming old, particularly as it still has very little legal or analytical support. The court is almost warning the Bush administration that it's very difficult to move forward in this war when half of the team is still gaping over its shoulder at the pillar of salt.

Is there something magical about having gone five and a half years without another 9/11? The administration has claimed that all the new legal authority it has grabbed in that time has been central to thwarting new attacks. Perhaps. But whether you call it a national epidemic of denial or a healthy outburst of healing, the country is beginning to understand that if we are going to be at war with terror for the rest of our lives, we need to think very carefully about the freedoms we give up. And that in turn means engaging in a future-looking analysis of how and if the laws of war should change to accommodate a new kind of enemy. It means sorting out deliberately whether the last five years of coercive interrogation have yielded any real results and whether past policies of indefinite detention have had any merit. It means getting down to the business of crafting a legal regime based on clean rules, as opposed to blanket assertions of executive authority in a time of crisis.

The 4th Circuit is seeking just such clear rules and definitions and categories in al-Marri, and that is a proper pursuit that is long overdue. The paradox of al-Marri is that it's the leaden, slow, and tortoise-like judiciary that seems to be resisting the inevitable temptation to keep on fighting the last war. This time, oddly enough, it may be the courts that are lighting the way toward contemplating the next one.

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Dahlia Lithwick is a Slate senior editor.
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