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Either of those cases could wind up in the Supreme Court. "To say that the Executive Branch on its own determination can pick somebody up and hold them indefinitely without any procedure or access to a court or to counsel or the press is an absolutely staggering thought," says Stephen Schulhofer, a law professor at New York University and the author of The Enemy Within, a book produced for the Century Foundation, that examines post-9/11 questions of civil liberty. The Attorney General insists that misses the larger point. "There are no civil liberties that are more important than the right to be uninjured and to be able to live in freedom," Ashcroft recently told TIME.
The dilemma is that reasonable people can agree with both arguments. But no one knows whether such changes will make us safer or undermine constitutional protections--or both. On the deck of the U.S.S. Abraham Lincoln last week, when the President said the war on terrorism would be a fight that lasts years, he should have added that some of its most pitched battles will be fought in our courts. And in our own divided hearts and minds. --Reported by Matthew Cooper and Viveca Novak/Washington, Rita Healy/Denver, Kathie Klarreich/Miami and Jeffery Ressner/Los Angeles