War without end

There's been a slightly delayed reaction to an appeals court verdict in the al-Marri case that foreigners resident in the USA cannot be denied habeas corpus rights in the war on terror, but it seems to be getting into full swing today. The still-Murdoch-free Wall Street Journal devotes an editorial and an op-ed by Bradford Berenson (subs. req'd) to it, and one of the claims in the latter is --

The balance of judicial control of executive action during wartime can never be calibrated perfectly. As a nation, we used to err on the side of too much presidential power -- and victory. We knew that we could always correct our excesses and make amends for errors after the war was over and our Constitution and values were once again secure.

One reason that accommodation worked is because the war being over was an observable event. But as George Bush has said repeatedly --

Today's war on terror will not end with a ceremony, a surrender ceremony on a deck of a battleship. But it will end with victory.

-- a circular formulation in which the war ends when the President says it ends. Which for a President Bush, Cheney, or Giuliani would be: Never. Note also that the Administration repeatedly refuses to set out specific indicators for when the war ends, because, they claim, those indicators would provide a new target for the terrorists. Hence the reluctance of the people, and the courts, to sign off on open-ended extensions of powers.