Terror and two-tier justice

It isn’t every day that civil libertarians welcome a decision by President Obama to adhere to a Bush administration anti-terrorism policy. But those who deplore the denial of due process to prisoners at Guantanamo Bay are grateful that Obama has concluded, as George W. Bush did, that they can be tried under current law, even if some may be so dangerous that the administration may resist releasing them.

That position seems paradoxical: What use is a fair trial if an acquitted defendant can’t go free? Yet some critics of Guantanamo believe it is preferable for Obama to operate within current statutes and Supreme Court decisions than for Congress to pass a new law allowing him -- and future presidents -- to shunt detention decisions to a “national security court” charged with determining not guilt or innocence but future dangerousness. Such legislation, they fear, would institutionalize a two-tier system of justice that never would be repealed.

We share that concern. But we also hope that Obama will find other ways to ensure that anyone he proposes to hold indefinitely has meaningful recourse to the federal courts.

Obama flirted with the idea of seeking additional detention authority from Congress in an address in May. He referred to detainees “who cannot be prosecuted yet who pose a clear danger to the American people,” and promised not to release them. Nevertheless, he said that detention “cannot be unbounded” and that decisions about who would be confined should involve Congress and the courts. He seemed to be embracing the idea of national security courts.

Now, however, the administration is suggesting that it won’t seek new legislation because existing law already empowers it to hold dangerous Guantanamo inmates indefinitely. The Authorization for the Use of Military Force approved by Congress after 9/11 authorizes the president to “use all necessary and appropriate force” against those complicit in the attacks and anyone who harbored them. In 2004, the U.S. Supreme Court held that it justified the detention of suspected terrorists, but the court also has said that detainees at Guantanamo are entitled to challenge their confinement in U.S. courts.

By far the best solution to this quandary would be for all of the remaining detainees at Guantanamo to be tried in civilian courts on terrorism charges and freed if they were acquitted. If the administration insists that a small number are too dangerous to release even in the event of an acquittal, it must abide by Obama’s promise that its decisions will be subject to meaningful review by the courts. The Constitution requires that safeguard, whether or not the president receives additional authority from Congress.