Louis Fisher, author of "American Constitutional Law" (5th edition, 2003), writes in an op-ed in today's Los Angeles Times, Who's Minding the Courts on Rights?

Times of war and emergency jeopardize civil liberties. Ironically, it is precisely at such moments, when we most need independent judges to check executive abuse, that judicial safeguards are weakest. Protections must therefore come from outside the courts. That has been the pattern in the past, and it appears, thus far, to be the record after the Sept. 11 terror attacks on New York and the Pentagon. Whatever moxie exists in the courts is likely to come from district judges or circuit courts, which are then typically reversed on appeal.

Fisher reviews the cases of Hamdi, Padilla, John Walker Lindh and others, and reminds us, protecting our civil rights ultimately is the responsibility of the citizenry...and the press.

Writing for the New York University Law Review in 1962, Earl Warren, then-chief justice of the United States, warned that courts are unreliable in time of war or emergency, and that "other agencies of government must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution." In a democracy, "it is still the Legislature and the elected executive who have the primary responsibility for fashioning and executing policy consistent with the Constitution." Moreover, "the day-to-day job of upholding the Constitution really lies elsewhere. It rests, realistically, on the shoulders of every citizen," Warren said.

Or in the words of Sixth Circuit Judge Damon Keith in the case holding deportation proceedings must be open to the public,

"In our democracy, based on checks and balances, neither the Bill of Rights nor the judiciary can second-guess government's choices. The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardian of their liberty."

Judge Damon's warning in that case, you may recall, was "Democracies die behind closed doors." Fisher has a new book out this spring, "Nazi Saboteurs on Trial: A Military Tribunal and American Law". We hope he puts to rest the Government's contention that In Re Quirin serves as precedent for the current round of detentions without counsel and access to the courts.