What is more "venerable" than habeas corpus, venerable both in the sense of being ancient and of being worth of veneration. And when is habeas corpus more necessary than in time of war, when the executive is exerting its power to the max. If habeas corpus is to be suspended, according to the Constitution, Congress must do it, and that is all the Court has said. When Andrew Jackson refused to release a civilian he had imprisoned during the Battle of New Orleans as to whom a writ of habeas corpus had issued, he did not contest a finding of contempt of court (although he resented it all his life). When Lincoln suspended habeas corpus without congressional approval, courts continued to issue writs of habeas corpus against him. True, he ignored them, but at least he had the honesty to say that he knew what he was doing was unconstitutional, he trusted the Congress to understand that his acts were necessary and not impeach him. The Bush Administration and its lackeys insist on maintaining that the President has these extra-constitutional powers.

The author is probably the only legal writer to suggest that standing requirements have relaxed over the past 60 years. When the Warren Court began its remarkable journey of following the principle that every legal right must have a legal remedy, it soon realized it had to identify who could assert the violation of a legal right. From this arose the doctrine of standing. Originally a rather low hurdle, it became one of the primary tools of the judicial counterrevolutionaries, so that today it requires a plaintiff to assert a personal, concrete, immediate and judicially remediable harm that continues through the entire life of the case.

The political question doctrine is probably the least venerable of legal doctrines, being primarily associated with Justice Frankfurter. It is a doctrine of avoiding controversies that might diminish respect for the law and the Supreme Court by making it seem like the Court was putting its thumb on the scales of a political dispute. It was largely employed to avoid dealing with redistricting cases. If one reads the early cases in this area, it is clear that the political process was frozen in numerous states by the failure of rural-dominated legislatures to redistrict in favor of the growing cities, and for the Court not to intervene was a dereliction of duty. In more recent years, the judicial counterrevolutionaries have used various abstention and federalism doctrines to say that federal courts should stay out of cases with political implications either as a matter of discretion or of states' rights.

It is true that the Rehnquist and Roberts courts have not been shy to assert their primacy over Congress and the President, and that Justice Kennedy has been a leader in that direction. Decisions such as City of Boerne v. Flores, Bush v. Gore, and the recent Voting Rights case (in which the 5-justice majority put aside its convictions rather than take responsibility for their consequences) demonstrate this. But the War Powers cases are self-inflicted wounds of the Bush Administration. It could have had all it wanted from Congress and the courts would not have said boo. It could have taken more flexible legal positions, but it virtually forced the court system, which showed itself open to every type of delaying tactic and administrative hoop-jumping requirement, to rule upon its extreme view of the president's powers. But it persisted in its Nixonian and Reaganoid ways ("when the president does it, it's not illegal") and lost.

So Lincoln and GWB acted is much the same way but Lincoln knew he was doing something wrong while GWB believed he was doing something right.

That appears to support the neo-con POV that GWB will one day be looked at as one of the great US Presidents like Lincoln.

Frankly I view Lincoln and GWB in a similar light. Both were very poor presidents.

The Court's determination of who has standing has waxed and waned over the last 60 years. From my reading of the cases, standing was expanded under the Warren and Burger courts, but has since been pared back some under the Rehnquist and Roberts courts. The one exception has been with regard to foreign prisoners -- the article is quite correct in noting that until very recently, the Court has never granted enemy combatants such access to the civilian courts.

Your subject line certainly applies to your post. Habeas corpus does not, and has never, applied to foreigners abroad. If you think it should, then lobby your congressman and senators to pass a law granting it.

One might add "alleged" enemy combatants.

And, I'm not sure what "such access" means. During WWII, for instance, the Supreme Court provided access to the federal courts repeatedly to enemy combatants, including those who came here with the intention to sabotage our industrial might. Repeatedly, enemy aliens (of course, many here allege they are not) have had access to the courts while on U.S. soil. Gitmo as the U.S. Supreme Court has soundly held is in most respects that.

-j

Gitmo is not "abroad" in most respects given the U.S. has near complete control over it. Do you mean Bagram? The USSC has not decided the point yet.

-j

You're a moron. Lincoln was the greatest president the U.S. ever had. He faced a grave existential threat to the nation that Bush quite obviously did not.

Lincoln believed, with significant justification, that his illegal suspension of habeus corpus was necessary to address the threat posed by Confederate spies and sympathizers.

Bush just wanted to be a "wartime president" and sought to make a mountain out of a molehill. Oddly enough, he succeeded, although not in the ways he planned. Bush wanted to magnify the crisis so his resolution of it would seem all the more dramatic and miraculous. All he managed to do was create additonal layers of problems.

The neo-cons better get busy writing and promoting their books about how Bush was Lincoln-esque. Most people are just glad the Bush nightmare is over & want to forget the whole thing.

Hating on Lincoln?

It's the beard, isn't it? A lot of people are put off by the Amish beard.