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.
Congress' failure to make clear in the Military Commissions Act that detainees could seek the protection of the Great Writ forces the court to wrestle with the question of whether such an avenue of appeal is offered by the Constitution itself. The administration makes two arguments: that, at the time of the adoption of the Constitution, habeas corpus didn't protect people outside a nation's "sovereign territories," and that, even if the court were to find otherwise, the procedures at Guantanamo are a "constitutionally adequate substitute" for habeas corpus. The first assertion is debatable -- briefs filed on behalf of the detainees cite contrary precedents in British law -- and the second is laughable.
Fortunately, the court can reiterate its observation in the Rasul decision that Guantanamo is subject to "the long-term, exclusive jurisdiction and control of the United States" and conclude that as such, the territory is governed by the Constitution's requirement that habeas be available except in cases of rebellion or invasion -- neither of which conditions exist.
It would have been preferable if Bush and Congress had granted to detainees at Guantanamo their day in court. But that failure is the court's opportunity to redeem America's reputation for fairness.