Due process at Gitmo

For the third time in four years, the Supreme Court has rebuked the Bush administration for denying due process of law to inmates at Guantanamo Bay Naval Base. In ruling Thursday that suspected terrorists may avail themselves of the protection of the ancient writ of habeas corpus, the justices also undid a compliant Congress’ collusion with the administration’s refusal to give the inmates a meaningful day in court. Instead of doing the minimum to comply with the court’s decision -- as it has done in the past -- the administration should enlist Congress’ cooperation in improving the flawed Military Commissions Act and cooperate in expedited judicial hearings for inmates who have filed habeas actions in federal court.

The 5-4 decision also broke important new ground. In 2004, the court held that detainees imprisoned at Guantanamo, a de facto U.S. territory, could challenge their confinement in a U.S. court under a federal habeas corpus statute. Rather than accept that ruling, Congress obliged the administration by passing legislation making it clear that the habeas statute didn’t protect the detainees and purporting to strip federal courts of jurisdiction to hear such appeals. It was a craven capitulation to an administration that has made cutting legal corners the trademark of its anti-terrorism policy.

On Thursday, however, the high court properly held that the detainees had a right to habeas review under the Constitution itself, which says: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” In the absence of those conditions, Justice Anthony M. Kennedy wrote for the court, habeas must be available. “To hold that the political branches may switch the Constitution on or off at will,” Kennedy added, “would lead to a regime in which they, not this court, say ‘what the law is.’ ”


Although the ruling rested on an interpretation of the Constitution, it also reflected the court’s impatience at the glacial pace of due process for suspects who have been imprisoned for six years. In a dissent caustic even for him, Justice Antonin Scalia referred to detainees as “alien enemies” (while suggesting that the ruling “will almost certainly cause more Americans to be killed”). But presumption is not proof. As Kennedy pointed out, a detainee is entitled to a “meaningful opportunity” to demonstrate that he is being held in error.

Bush can rail against the Supreme Court or he can honor the spirit as well as the letter of this ruling and work with Congress to reform a system that has delayed justice for detainees and dishonored America in the eyes of the world. And he should do what both of the men aspiring to succeed him have promised to do -- close Guantanamo.