David B. Rivkin Jr. and Lee A. Casey spin the Supreme Court's three "war-on-terrorism cases" as a victory for the administration ["Bush's Good Day in Court," op-ed, Aug. 4]. Not so.

First, the Hamdi case. The court rejected the government's primary argument in Hamdi v. Rumsfeld: that the courts cannot "second-guess" the military's enemy combatant determinations. Then the court threw out the government's fallback argument: that the government has to produce only "some evidence."

Yaser Esam Hamdi will get a lawyer and a fair opportunity to rebut the government before a neutral decision maker. Contrast that with President Bush's executive order on military tribunals, which declared that a detainee "shall not be privileged to seek any remedy . . . directly or indirectly . . . in any court of the United States."

Then there is Rumsfeld v. Padilla. The Defense Department had insisted that "combat zone" should be interpreted to include Chicago's O'Hare Airport. No cigar.

The Supreme Court does not regard all of America as a battlefield in the war on terrorism. While the court didn't reach the merits in Padilla, the inescapable conclusion is that Jose Padilla soon will be charged or released.

Mr. Hamdi's detention was permitted to prevent combatants from returning to the battlefield, but Mr. Padilla did not come from the battlefield. Mr. Hamdi's detention was allowed because Congress's resolution after Sept. 11, 2001, authorized the capture of enemy soldiers in a combat zone; Mr. Padilla was an unarmed non-soldier far from active combat.

Finally, the Guantanamo case. There, the court went further than the detainees had requested. Instead of granting habeas relief because the Guantanamo Bay facility is de facto U.S. territory, the court held that the habeas statute applied to anyone whose "custodian can be reached by service of process." That prompted Justice Antonin Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, to complain that the court "boldly extends the scope of the habeas statute to the four corners of the earth."

Those cases, insist Mr. Rivkin and Mr. Casey, represent "a significant reaffirmation" of executive power. In reality, the administration's baseline assertion -- no role for the judiciary -- is dead.



The writer is a senior fellow in constitutional studies at the Cato Institute.

The observation of David B. Rivkin Jr. and Lee A. Casey that overall, "the executive branch has done very well so far and, assuming a fair and transparent processing of the detainees by the military justice system, should continue to do so in the future" reflects a mistaken premise.

Whether the Supreme Court's decisions were a defeat (as most observers believe) or a victory for the administration, the detainees are not being subjected to "the military justice system," either with respect to the decision to detain or with respect to those few who have been designated for trial by military commission. To confuse these processes with the system framed by the Uniform Code of Military Justice and the Manual for Courts-Martial does a disservice to that system.

While that system is not perfect (and would benefit from congressional review), it's a far cry from the one to which the detainees have been and are being subjected. Let's not confuse the two.



National Institute of Military Justice


The writer represented Army chaplain James J. Yee, who was accused of mishandling classified material, among other charges since dropped.