Though they often skirt the legal perimeter, the Bush Administration's national security policies are undoubtedly creative. The Administration's inventiveness demands a similar agility from the lawyers challenging these policies, particularly since the federal courts are understandably reluctant to interfere with the Executive in the midst of an armed conflict. While procedural arguments based on the separation of powers have met with some success in the courts, new legislation resulting from new Administration strategies requires a fresh approach. The Equal Protection Clause is a powerful and, thus far, unused arrow in the constitutional quiver. Its greatest utility is that, like the separation of powers claim, it can be styled as an avoidance argument.

It is too difficult and too soon for courts to decide whether all of the federal government's post-September 11, 2001 policies are substantively correct. Despite the waves of litigation and commentary charging that the Administration's actions are illegal to the core, neither the courts nor the public have reached agreement, in just over five years, on how to balance individual liberty and national security. The questions posed by terrorism are just too new and the dangers of asymmetric warfare (both in probability and extent of damage) too uncertain at this early date.