This story is infuriating:

Shawqi Ahmad Omar is an American citizen who, according to his family, moved to Iraq to help with the reconstruction effort, [but] was detained by U.S. Forces in October of that year on suspicion of having terrorist connections and has been languishing in U.S. military detention ever since. During that time, he has not been charged with any crime and has had no access to a lawyer. In December 2005, Omar’s family filed a habeas corpus petition in the U.S. District Court for the District of Columbia challenging the legality of his continued detention….While Omar’s habeas petition was pending, the U.S. government notified his family that it planned to transfer him into Iraqi custody—and conveniently out of the reach of the U.S. justice system.

Our federal judiciary is supposed to serve as a check on the power of Congress and the executive branch, ensuring that Americans’ basic rights are protected. But a radical doctrine promulgated by the Bush administration holds that there are virtually no civil liberties which cannot be trampled on if the president claims that doing so is in the interest of national security.

We have seen the persistence of advocates of this theory—including Berkeley faculty member John Yoo. Their contention that warrantless wiretapping and indefinite detentions can be justified, even when they target American citizens, brings to mind some of the saddest chapters of American history (the Japanese internment during World War II, for example).

I fear that this dangerous neoconservative idea, if it continues to gain traction, could be the most tragic legacy of the Bush presidency—even more so than the Iraq war. For in undermining the separation of powers, this theory (if recognized at all by the courts) would deal a heavy blow to the very concept of America as the land of the free.

In this particular case, the only bit of hope comes from the D.C. court’s refusal to go along with the government’s transfer plans, though it was a 2-1 decision: extremist Bush appointee Janice Rogers Brown dissented. Fortunately, the Supreme Court has said in recent cases that the president has exceeded his authority in establishing unfair procedures for trying detainees at Guantánamo Bay. It remains to be seen whether the courts will continue to reject the president’s anti-liberty arguments, and whether the Senate under Democratic control will succeed at staving off the most extreme of Bush’s future judicial nominees.