Overplaying Its Hand

When it comes to national security—fighting wars and defending the nation—the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had no power to meddle there. Just as the true believers in the Bush White House have done so often, they overreached.

As Charles Fried, solicitor general in the Reagan administration, has reportedly put it, the Bush administration "badly overplayed a winning hand." Bush and his advisers so flouted ordinary, and old, ideas of justice and liberty that they put the Supreme Court in an impossible position: either rubber-stamp denials of due process to detainees who say they were seized by mistake, or step in and create a new set of problems by making rules on a slow, messy, case-by-case basis. In effect, that's what happened last week when the court ruled in Boumediene v. Bush. If ever there was proof of the adage "hard cases make bad law," this is it.

Historically, prisoners of war have no rights in U.S. courts. But even so, they are released when the war ends. The War on Terror has no foreseeable end. What's more, since the terrorists don't wear uniforms, it can be hard to discern who the real enemies are. Under the four 1949 Geneva Conventions, prisoners of war have some rights. But after 9/11, hard-liners in the administration decided that terror suspects brought to Guantánamo and various secret prisons around the world lacked any of the protections of the Geneva accords because they were "unlawful combatants."

Under pressure from the courts, the Republican Congress passed laws in 2005 and 2006 giving terror suspects minimal opportunities to challenge their detention in federal court. Detainees were not allowed to have defense lawyers in initial military hearings to determine their status as enemy combatants, or to see or rebut evidence deemed secret by the government.

The potential for unfairness was so great that last week the Supreme Court stepped in and struck down the federal laws, ruling that terror detainees must be given full access to federal courts, under the ancient principle of habeas corpus, which roughly means that government cannot hold you without proving to the courts a legal basis for the detention.

The decision was close, 5-4; writing for the majority, Justice Anthony Kennedy said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." In his dissent, Justice Antonin Scalia pointed an accusatory finger at Kennedy and the justices who agreed with him. The decision will mean the release of dangerous terrorists, he warned, "and almost certainly cause more Americans to be killed." Chief Justice John Roberts, who also dissented, was less alarmist. He predicted that the detainees' cases would rattle around the courts and that the outcome—in terms of detainees ultimately released—would be about the same as if the justices had upheld the existing process. Scalia, Roberts and the other two conservatives chided the majority for a judicial power grab.

In the wake of the court's decision, pressure will grow on the Bush administration to close down Guantánamo, which has been a public-relations disaster. The military has already released more than 500 detainees for a variety of reasons; most have gone back to their native countries, though there is some evidence that more than 30 have shown up as combatants in Iraq and Afghanistan and some have killed innocent people. If Guantánamo closes down, it's unclear what will happen to its 270 detainees.

Whoever wins the presidency in November will be under pressure to make sure that those detainees considered most dangerous (whoever they may be) stay locked up, and it's not at all clear any U.S. state will want to accept them as inmates. Rather than allow future captives legal rights, the military may choose to detain them on bases far from the United States. The Supreme Court was silent on whether its writ runs to these foreign bases.

Indeed, a host of questions remain to be resolved. What kind of rights should detainees have? Will they have access to secret evidence to be used against them? Should they be able to compel American soldiers or foreign nationals to leave the battlefield to testify against them in person? Can they summon friends and neighbors from foreign lands to testify to their innocence? The only clear outcome is the certainty of enduring confusion: by trying to sidestep the most basic legal protections for detainees at the outset, the Bush administration guaranteed years of legal wrangling.