THE SUPREME COURT agreed yesterday to consider whether federal courts have any power over the military's war-on-terrorism detainees at Guantanamo Bay, Cuba. The decision was something of a surprise. The court's prior precedents make it clear that U.S. courts have no jurisdiction over non-Americans detained abroad, and lower court judges unanimously have deemed this case law as precluding their review of the Guantanamo detentions. Any assertion of jurisdiction by the courts would open a huge can of worms about where exactly to draw the jurisdictional lines. Federal judges shouldn't be overseeing foreign and military affairs. But the court's announcement yesterday ought to be a wake-up call to the military.
It is often a mistake to read much into a decision merely to hear a case; the justices could simply have taken the matter because the case is of sufficient importance that they felt obliged to resolve it from the top. But it's also possible that some of the justices, like many other Americans, are alarmed by the administration's obstinate refusal to be governed by reasonable rules at Guantanamo, where it is holding about 660 people. Indeed, the Bush administration has all but taunted the courts to step in. From the beginning, it has refused to comply with the strict terms of the Geneva Convention, which requires that detainees be given hearings before they are designated "unlawful combatants." It has refused to disclose who is being held or under what standards. There is no remotely neutral forum in which inmates can argue any claim they might have that they are being held in error. None of the detainees has a lawyer. And the much-ballyhooed system of military tribunals that the administration announced two years ago has, so far, resulted in zero trials, with only a handful ostensibly scheduled. The administration effectively asks Americans to tolerate the indefinite detention of large numbers of people with no charge, no accountability and no seeming urgency about making the rule of law into a reality.
The laws of war do, as the administration contends, permit the detention of the other side's fighters during hostilities. But those laws presuppose that hostilities will eventually end and prisoners will be released. They don't help much in a perpetual conflict against an adversary with whom peace is unimaginable. Nor is the Supreme Court well placed to provide a solution. Such a solution could and should come from the administration and Congress. Both have failed in their duty to create a process that is fair and understandable, thereby creating a risk that the courts will fill the legal void. Guantanamo can't remain a lawless human warehouse forever.