A president responds to an unprecedented war with unprecedented measures that test the limits of his constitutional authority. He suffers setbacks from hostile Supreme Court justices, a critical media and a divided Congress, all of which challenge his war powers.

Visiting Scholar John Yoo

Liberal pundits and editorial pages would have you believe this describes President Bush after the Supreme Court last week rejected military commissions for trying terrorists. But it just as easily fits Abraham Lincoln when he issued the Emancipation Proclamation freeing the slaves or Franklin D. Roosevelt when he made the United States the great "arsenal of democracy" in the lead-up to World War II.

The court's decision in Hamdan vs. Rumsfeld ignores the basic workings of our separation of powers and will hamper the ability of future presidents to respond to emergencies with the forcefulness and vision of a Lincoln or an FDR.

Long-standing U.S. practice recognizes that the president, as commander in chief, plays the leading role in wartime. Presidents have started wars without congressional authorization, and they have exercised complete control over military strategy and tactics. They can act with a speed, unity and secrecy that the other branches of government cannot match. By contrast, legislatures are large, diffuse and slow. Their collective design may make them better for deliberating over policy, but at the cost of delay and lack of resolve.

The Sept. 11 attacks succeeded in part because our government was mired in a terrorism-as-crime approach that worried less about preventing attacks than about hypothetical threats to civil liberties--hence the "wall" preventing our law enforcement and intelligence agencies from sharing information. Our laws considered war as conflict only between nations and failed to anticipate the rise of non-state terrorist organizations that could kill 3,000 Americans, destroy the World Trade Center and damage the Pentagon in a single day.

Bush invoked his constitutional authority to fight this shadowy enemy that does not wear uniforms, targets civilians and violates every rule of civilized warfare. Like George Washington, Andrew Jackson, Lincoln and FDR, Bush established military commissions to try enemy combatants for war crimes. If the commander in chief couldn't have taken wartime actions on his own, then the slaves would have remained Confederate property during the Civil War and Britain would not have fully benefited from American aid and military support before World War II.

As an official in the Bush administration's Justice Department from 2001 to 2003, I argued that the president had the constitutional power to act, alone if necessary, to defend the country from another attack. I helped shape the legal policies--one of which the Supreme Court has now blocked--giving him the flexibility to wage a successful war on terrorism.

Wartime decisions, which often must be made under pressure of time and unique circumstances, do not always fit the general rules passed beforehand by legislatures. War is dangerous and unpredictable and best handled by a president who can act with "decision, activity, secrecy and dispatch," in the words of the Federalist Papers.

Congress has an important role but one exaggerated by critics of the war on terrorism. It could easily have blocked any aspect of the administration's terrorism policies simply by removing funding or political support. It could have closed Guantanamo Bay in a day, if it wished. Instead, it authorized the president to use all necessary and appropriate force against any individual, organization or state connected to the 9/11 attacks. Then, following past practices, it sat back and let the president handle the details and assume the political risks. Critics seem to believe that Bush's policies are at odds with the Republican Congress. They are not.

What makes this war different is not that the president acted while Congress watched but that the Supreme Court interfered while fighting was ongoing. Given its seizure of control over some of society's most contentious issues, such as abortion, affirmative action and religion, maybe the court's intervention should come as no surprise. But its effort to inject the Geneva Convention into the war on terrorism--even though the treaties do not include international conflict with non-states that violate every rule of civilized warfare--smacks of judicial micromanagement. The Supreme Court has never before imposed its preferred interpretation of a treaty governing warfare on the president during war, and Geneva has never been understood to give enemy combatants rights in our courts.

The court displays a lack of judicial restraint that would have shocked its predecessors. In World War II, the Supreme Court established precedents directly to the contrary. To evade these previous rulings, the court misread a law ordering it not to decide Guantanamo Bay cases, narrowed the very same authorization to use military force that it had read broadly just two years ago, ignored centuries of practice by presidents and Congress on military commissions and intruded into the executive's traditional national security prerogatives. Justices used to appreciate the inherent uncertainties and dire circumstances of war, and the limits of their own abilities. No longer.

But here, unlike abortion, the Supreme Court does not have the last word. Congress and the president can enact a simple law putting the court back in its traditional place, allowing for the usual combination of presidential initiative and general congressional support. There is no other way to fight a successful war, as we learned Sept. 11.

John Yoo is a visiting scholar at AEI.