Wednesday, January 7, 2009; Page A14 

In its last days, the administration is still making counterproductive arguments about detainees.

EVEN IN its waning days and despite several rebukes by the Supreme Court, the Bush administration continues to espouse extreme theories about the detention of terrorism suspects.

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In a conventional war, where hostilities are formally declared and suspended and combatants are easily identified by the uniforms of their countries, federal judges have rightly been loath to interfere with the battlefield decisions of the executive. But the indefinite nature of the war against terrorism and the ease with which combatants can blend in with civilian populations means that the executive requires more flexibility in fighting the enemy and more checks and balances to ensure that innocents are not wrongly swept up. After all, it is also in the nation's interest to make sure that it detains only those who would do it harm. 

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