The case for clear standards on holding the worst of the detainees

NO LAWS specify the procedures and standards that should govern the indefinite detention of terrorism suspects. Now that an Obama administration task force has determined that some 50 detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, are too dangerous to release but not eligible for prosecution or transfer, that legal vacuum needs to be filled.

The administration, like the Bush administration before it, argues that the 2001 Authorization for the Use of Military Force (AUMF) gives it the right to use "all necessary and appropriate force" -- including indefinite detention -- against al-Qaeda and Taliban terrorism suspects responsible for the Sept. 11, 2001, attacks. This approach is at once too broad and too narrow.

No president should have unchecked power to hold suspects indefinitely without trial. Although all Guantanamo detainees are entitled to have federal courts review their cases, no rules govern these detentions once a federal judge signs off on their legitimacy. The administration has vowed to periodically review cases of continued detention, but it has not yet promulgated guidelines. Even when it does, its approach will be unacceptable because it gives the executive exclusive, unquestioned power to hold or release.

Congress and the White House should work together to create a national security court that would give detainees robust adversarial rights and give the judiciary the authority to oversee such continued detentions. The legislation should allow prosecutions with slightly more relaxed evidentiary standards in this special court; without such a mechanism, the executive would have a perverse incentive to default to detentions without charge. The court should have jurisdiction over all foreign nationals who are identified as terrorism suspects; the AUMF gives the president authority only against those aligned with al-Qaeda or the Taliban.

President Obama should reach out to Sen. Benjamin L. Cardin (D-Md.), who has said that he is willing to work with the president to explore different approaches. Republican Sens. John McCain (Ariz.) and Lindsey O. Graham (S.C.) also have expressed willingness to cooperate.

The thought of a permanent legal framework that authorizes and governs indefinite detentions scares many observers, which is why civil liberties groups all but cheered last year when Mr. Obama announced that he did not need and would not seek Congress's help to establish such a framework. But what should be more frightening and cannot be allowed to persist is a system that implicitly condones the practice with no rules and no oversight.