In his recent article, he states:
1861. 1941. 2001. Our big wars -- and the war on terrorism ranks with the big ones -- have a way of starting in the first year of a decade. Supreme Courts, which historically have been loath to intervene against presidential war powers in the midst of conflict, have tended to give the president until mid-decade to do what he wishes to the Constitution in order to win the war.
During the Civil War, Abraham Lincoln suspended the writ of habeas corpus -- trashing the Bill of Rights or exercising necessary emergency executive power, depending on your point of view. But he got the whole troublesome business done by 1865, and the Supreme Court stayed away.
During World War II, Franklin Roosevelt interned Japanese Americans. He, too, was left unmolested by the court. But Roosevelt also got his war wrapped up by 1945. Had the current war on terrorism followed course and ended in 2005, the sensational, just-decided Hamdan v. Rumsfeld case concerning military tribunals for Guantanamo Bay prisoners would have either been rendered moot or drawn a yawn.
This is essentially what I've been saying for years now. The USSC generally gives the Commander-In-Chief a lot of leeway during major wars. He is able to temporarily restrict some rights until the crisis has passed, and then the courts step in to reaffirm the pre-war status-quo. This unspoken agreement between the two branches of the federal government has both allowed us to win the really big, important wars, while ensuring that our civil rights will not be permanently abridged.
But this time, the USSC has stepped in prematurely, because the war is not over yet. And because of this, the enemy has just been given a helping-hand...