If there was one thing this country's Founders agreed upon, it was to oppose the concentration of power. Overriding all other considerations in the new Constitution was a system of checks and balances to avoid one-man rule.

From this came the three branches of government, executive, legislative and judicial; the division of powers between federal government and states; the presidential veto and the congressional override; the two houses of Congress. The First Amendment gave the people freedom of speech and press to exert another powerful check.

While our eyes are on Iraq, one of the three branches is about to decide if the Founders really meant what we think they meant about concentrated power.

The Supreme Court is hearing three cases dealing with American imprisonment of individuals alleged in some way to be involved with terrorism. Some of these people are American citizens; most are not.

The cases are complex, but at their very heart is the principle of judicial review, the right of the courts to check actions of the executive that are contrary to the Constitution. This right, not specified in the Constitution, dates from a Supreme Court decision of 1803 that has not been successfully challenged for 200 years.

If the court decides that during a self-declared "war" a president can override basic rights of American citizens and the basic human rights of noncitizens, it will give George Bush II the greatest powers provided to a president since we overturned George III.

He will literally have the power to hold detainees, most of whom are incommunicado at Guantánamo Naval Base in Cuba, without a charge and without legal counsel, so long as the "war" continues. When does a "war on terrorism" end and what president will be bold enough to declare "mission accomplished"?

Presidents have been given extraordinary powers in prior wars, and both Abraham Lincoln and Franklin D. Roosevelt invoked power that was later questioned. Roosevelt's internment of Japanese Americans was the most egregious case, but even in that case internees had access to the courts.

The foreign detainees at Guantánamo allegedly fought with the Taliban in Afghanistan. Yet the administration lawyers maintain that they can be detained even after Afghan hostilities conclude, however and by whomever that is determined. In other words, indefinite imprisonment, without access to either American or international courts.

No doubt many if not most of the detainees were partisans; but it is also likely some were swept up in the furor of the day, or turned in by bounty hunters or to resolve a grudge. Regardless, there is no legal forum for them to make their case.

Two American citizens take their appeal to the high court today, and their case is even more compelling. They also have been held for two years without charge or access to the courts.

There are many frightening aspects to these cases, not the least of which is the plight of any future American captured by a foreign government that then uses this as a precedent for indefinite imprisonment. Our actions appear to be in contradiction of international treaties and agreements, further eroding those basic extensions of human rights.

But the most serious impact is what this says about us as a nation and our ability to defend our freedoms against authoritarian power.

A ruling that any citizen is not protected by the Constitution and the legal system contradicts a history that ended slavery, that gave all citizens voting rights, that made this country a true model for others to emulate.

We currently have a federal government in which the White House and both houses of Congress are controlled — quite solidly — by one political party, even, some would argue, one ideological wing of that party.

If the Supreme Court abandons the field, only the First Amendment rights of citizens and media remain to question unrestrained power, and past governments have used sedition laws to put down critical media.

Yes, this is strong rhetoric, but we live in a country where millions still live in the shadow of 9-11 and are willing to accept almost any loss of freedom in order to feel safe. And we have a president who shamelessly plays on those fears.

One or two defections from the majority that put Bush in the White House will be required for the Supreme Court to put the brakes on this breathtaking grasp of power. Someone in a black robe must put country ahead of partisanship or we will be changed in ways most of us cannot imagine.

Floyd J. McKay is a journalism professor at Western Washington University.

Copyright © 2004 The Seattle Times Company

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