The Constitution vests in Congress alone the power to declare war, and makes the President alone the commander-in-chief. If it accords any war-making decisions to the judicial branch, this fact has been well hidden for two hundred years or so.
Thus I congratulate the administration's attorneys for correctly concluding that (1) American citizens who have taken up arms against the country may be targeted in a time of war, and (2) the targeting decision belongs to the President, not the judiciary. The Associated Press has the story.
Candidate Obama, speaking with equal measures of gusto and gleeful irresponsibility, demagogued this and similar points to a fare-thee-well. I am grateful, and relieved, that President Obama has come to his senses.
This does not mean that Obama or any other President unfailingly is going to get these decisions right -- but neither are the courts, and the President has both superior capabilities, and the Constitutional portfolio, to make the call.
The other issue, of course, is that the courts really don't want this decision. Let's say they intervene and order someone released and he commits a horrible terrorist attack--can the courts endure the institutional damage that would occur? I don't particularly care for the intrusiveness of courts in our lives as Americans, but I do think that a robust and independent judiciary is important.
There is a great Doctor Who episode where one of the time traveler's young companions meets her middle-aged self.
With the Doctor's assistance, I'd really like to have a debate on presidential war powers between Senator Obama and President Obama. That would be totally cool.
Senator Obama: If we trample civil liberties, we will surely have lost.
President Obama: That observation only applies when I am not President.
Senator Obama: My bad.