President Bush has been more than willing to wield the “loaded weapon” of wartime power based on “urgent need.” He has claimed authority to engage in electronic surveillance without a warrant, convene military tribunals without congressional approval, establish secret CIA prisons, declare that all battlefield detainees are enemy combatants, imprison U.S. citizens without filing charges, and employ interrogation techniques that may have violated our treaty commitments banning torture.
The problem is not that courts today are invoking Korematsu to justify executive power. The holding in that case is an anachronism, “overruled in the court of history,” even if not officially repudiated by the Supreme Court. But Fred Korematsu’s challenge, if it had been upheld, would have stood as a formidable barrier to excessive concentrations of power in the executive branch. Instead, the court condoned Roosevelt’s unconstitutional internment policy and passed up its chance to establish legal precedent that might have dissuaded future executive misbehavior.