Justice in chief?

Opinion Journal:

Mark the calendar for late June, when the U.S. Supreme Court is expected to rule in Hamdan v. Rumsfeld. That's the Guantanamo case, heard by the Court this week, in which Osama bin Laden's former driver argued that the Bush Administration's plan to try him in a military commission is illegal.

The Court's opinion in Hamdan bids to be a turning point in the war on terror. If the Administration wins, the President will have an important tool--used by Washington, Lincoln and FDR--with which to fight the enemy. If it loses, watch for a new chapter in those al Qaeda handbooks that instruct recruits in how to game the West's legal system if they are captured.

The outcome of Hamdan appears to be more of an open question than it should be in the Supreme Court, whose sense of self-importance could lead it to conclude that it can conduct the war on terror better than the executive branch. Ruling against military commissions would go against a more than 200-year tradition in which the Court defers to the executive branch on matters of national security.

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Civilian courts have had some success in trying terrorists since 9/11, and they can be a useful tool in limited cases. Witness the Arab-American student who was sentenced this week to 30 years in prison for plotting with al Qaeda members to assassinate President Bush and hijack airplanes. The plea bargains reached in the cases of "American Taliban" John Walker Lindh and the al Qaeda cell operating outside Buffalo are other examples.

The counterexample is the "20th hijacker" circus, a k a the trial of Zacarias Moussaoui. He was indicted more than four years ago and has since had a merry time toying with the legal system that is trying to give him a fair trial. His latest gambit in his bid for the death penalty, and presumably martyr status, was to announce this week that he and shoe-bomber Richard Reid had been planning to hijack a fifth airline on 9/11 and fly it into the White House.

Hamdan and other Gitmo detainees captured on foreign battlefields fall into a special category. The evidence against them often comes from intelligence sources that can't be shared in open court without jeopardizing lives or clueing the enemy into what we know. The rules governing military commissions allow courts to hear and evaluate such evidence, in secret if necessary. The attorneys for the defendants have security clearances.

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Actually the worse case was the trial of the African embassy bombers, because discovery in those cases tipped Osama bin Laden that we were monitoring his satelite phone calls. Contrary to many media reports, the fact that we knew he had the phone was never a secret. He even used it to call the media, specificly doing so shortly before Clinton's retaliation for the embassy bombings when he called the BBC to lie about his role. What came out in the trial was evidence of conversations he had with various participants in the bombing. That was evidence we would never get again because he quit using the phone at that point.