For the third time in 3 1/2 years, the Bush administration today will attempt to persuade the Supreme Court to look the other way while alleged enemy combatants imprisoned at Guantanamo Bay Naval Base are denied the traditional protections of American law. As they did twice before, the justices should reject the administration's position, even though it now comes with the blessing of a compliant Congress.
Last year, in the case of Hamdan vs. Rumsfeld, the high court reprimanded President Bush for devising a system of military tribunals to try detainees without any involvement by Congress. Today, Solicitor General Paul D. Clement is expected to tell the court that this problem was solved when Congress passed the Military Commissions Act of 2006. But that law, while an improvement over the administration's jury-rigged procedures, still denies inmates the assistance of counsel in challenging their designation as enemy combatants. And if they are tried by a military commission, the prosecution can use coerced testimony as long as it is "probative."
Even worse, the act purports to strip detainees of the right to challenge their confinement by seeking a writ of habeas corpus from any "court, justice or judge." In the 2004 case of Rasul vs. Bush, the Supreme Court ruled that, because they were being held in a territory "over which the United States exercises exclusive jurisdiction and control," Guantanamo detainees could file habeas appeals. The administration says that decision was rooted not in the Constitution but in a federal habeas statute that Congress was free to change.