Guantanamo Bay power grab.(Insider Report)

In mid-November the U.S. Supreme Court agreed to hear an appeal to lower-court rulings affirming the government's right to hold indefinitely more than 650 foreigners as terrorist suspects. Most of the detainees are held at the U.S. Navy base at Guantanamo Bay, Cuba. At least two detainees--Jose Padilla and Yaser Essam Hamdi--are U.S. citizens being held at U.S. Navy brigs and denied access to legal counsel.

The Bush administration, as represented by U.S. Solicitor General Theodore Olson, insists that the Supreme Court does not even have jurisdiction to hear the case. Among the groups filing briefs on behalf of the administration is the American Center for Law and Justice (ACLJ), a conservative "civil rights" litigation group. ACLJ chief counsel Jay Sekulow, echoing the administration, maintains that the Guantanamo Bay detainees are illegal combatants, not legitimate prisoners of war.

"They're not part of a nation-state," Sekulow told Voice of America. "This is a war on terrorism that's very different in that context. The idea that the courts would come in to second-guess the decision of the president would be, in our view, a violation of what's called the 'separation of powers.'"

There are three very serious problems with Sekulow's analysis. The first is that the president cannot act as a judge, jury and jail keeper without usurping the powers reserved to the judicial branch. The second is the idea that legal rights are a function of being "part of a nation-state"--an idea radically at odds with the American proposition that rights inhere in individuals.

The third problem is this: The limits of government power are not defined by the question of whom they're exercised against. The ...