The Justices' Refrain

Friday, June 13, 2008

THE SUPREME Court ruling yesterday that those held at Guantanamo Bay have a constitutional right to challenge their detentions in federal court is a welcome victory for due process and the rule of law. It completes a signal and totally avoidable failure by President Bush, who will leave office with the nation's regime for holding al-Qaeda combatants in shambles. And it leaves unanswered many questions that will undoubtedly trigger more litigation.

A 5 to 4 majority of the court correctly concluded that habeas corpus, the ancient right to contest one's detention, extends to those held at the U.S. Navy base in Guantanamo Bay. Although it only leases the property from Cuba, the United States exerts complete legal and military control over the base; those held there have nowhere to challenge their detentions other than U.S. courts. To have forbidden the detainees access to those courts would have left the executive branch almost unfettered power to hold people indefinitely -- a proposition that is untenable. "To hold that the political branches may switch the Constitution on or off at will," wrote Justice Anthony M. Kennedy for the majority, "would lead to a regime in which they, not this Court, say 'what the law is.' "

The court wisely limited its holding only to detainees at Guantanamo; it left open the question of whether noncitizens held elsewhere outside the United States were entitled to such protections. The court also rightly held that, as currently configured, tribunals designed to determine whether detainees qualify as "enemy combatants" cannot constitutionally serve as substitutes for habeas corpus hearings in federal court because they essentially make a mockery of detainees' ability to rebut government charges. And it made clear that the 37 detainees who brought the case should not have to wait any longer. "While some delay in fashioning new procedures is unavoidable," Justice Kennedy wrote, "the costs of delay can no longer be borne by those who are held in custody."

Yet the court's 70-page majority opinion leaves many questions unanswered. While it took the extraordinary step of invalidating the process sanctioned by Congress and the executive to govern detention at Guantanamo, the majority offered only general and indirect guidance about what such a process would have to include to pass constitutional muster. By their own account, the justices also did not address the underlying legal basis for holding the prisoners as "enemy combatants," rather than as prisoners of war or suspects charged with crimes.

Mr. Bush suggested yesterday that he may propose -- again -- legislation to enable the detention of foreign suspects without charge. It's not clear whether Congress can be moved to act before the upcoming election -- but sooner or later, lawmakers must fix this mess. If al-Qaeda militants and other foreign terrorism suspects are to be held outside the U.S. justice system, they must be granted robust rights, including access to civilian lawyers and judges and the ability to challenge the evidence against them. Only in the most extreme cases should prisoners be held indefinitely without charge or trial, and then only with regular judicial review. It's time that Congress absorb the lesson that the Supreme Court has repeatedly imparted: The war on terrorism cannot invalidate the rule of law.

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