But the White House's retreats have been only tactical, and—unless pressure against the administration intensifies—they are likely to be temporary.
Adopting the narrowest possible interpretation of the decision giving Guantánamo Bay detainees access to federal courts, the administration now claims that while the detainees might be allowed to file a challenge in court, they have no rights for the courts to enforce.
In signing the McCain Amendment into law, Bush vowed to construe it "in a manner consistent with the constitutional authority of the president ... [and] the constitutional limitations on the judicial power." Translation: I will comply with this law, except when I don't.
Meanwhile, Goldsmith, Comey, and their allies have left the government. The principal executive supremacists—Cheney and David Addington—remain.
The Framers of the Constitution intended to make Congress—not the commander-in-chief—pre-eminent in matters of war. The Constitution gives Congress the powers to "declare War," to "define and punish ... Offenses against the Law of Nations," to "make Rules concerning Captures on Land and Water," and more. George Washington, James Madison, and other Founders all stressed the primacy of Congress in these matters.
Today, the Supreme Court is widely seen as the principal check on presidential overreaching. But courts can decide only a few narrow issues as cases come before them, and cannot legislate detailed rules to restrain the president. What's more, as the late Chief Justice William Rehnquist once wrote, the courts historically have shown "reluctance ... to decide a case against the government on an issue of national security during a war."
That is, unless the courts see the president and Congress as being at odds. When Harry Truman tried to seize the nation's steel mills to prevent a strike during the Korean War, he did not get his way. Congress refused to authorize his request for seizure, and when he went ahead anyway, the Supreme Court slapped him down forcefully.
In a famous concurrence—cited by both Chief Justice John Roberts and Justice Samuel Alito during their confirmation hearings as the touchstone of separation-of-powers analysis—Justice Robert Jackson wrote: "Presidential powers are not fixed but fluctuate depending on their disjunction or conjunction with those of Congress... When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." Jackson added, "No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."
That danger looms large today. In this war without apparent end, in which swift and decisive presidential action can be critical and new attacks could embolden presidents further, will we become habituated to creeping presidential autocracy? Will the number of Americans detained by the military as enemy combatants rise from two (so far), to 200, to 2,000, to 20,000 or more? Will this administration's extreme claims, if they take root as precedent, eviscerate our system of checks and balances?
Much will depend on Roberts and Alito, but more will depend on Congress. Contrary to their partisan critics, the two Bush appointees are nobody's patsies. But they know that courts have neither an electoral mandate nor the expertise to second-guess presidential claims of wartime necessity. If the Court is to be an effective check, it will need help.
"A crisis that challenges the president equally or perhaps primarily challenges Congress," Justice Jackson wrote in an unpublished draft of his concurrence. "If it does not rise to its occasions, if it is petty, partisan, or indecisive[,] power will gravitate to the Executive by force of public opinion whether this Court affirms or not."