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Third Strike

With its recent decision to reverse itself and hear the latest round of litigation from Guantánamo Bay, Cuba, the Supreme Court has put the Bush administration on notice: Unless it does something--and fast--it is likely to get a butt-thumping. The adverse decision, when it comes, could well end up being more than just another in the growing string of embarrassing court defeats in the war on terrorism. At issue in the case--yet again--is the jurisdiction of the Court to consider habeas corpus actions from Guantánamo. Twice before, first in 2004 and then again last year, the Court has held based on statutes that it has jurisdiction over the base, but Congress has responded to each ruling by attempting to strip it of that jurisdiction. Given these enactments, the Court this time probably cannot avoid a more fundamental question: Does the power to hear these cases reside in the Constitution itself? Depending on its wording, a ruling that it does would constitute an earthquake in the power of the courts over foreign and military affairs.

In the two earlier cases, the administration deluded itself that it would win legal showdowns over Guantánamo at the high court. And it could so pretend again, laying down a high-stakes bet on the swing vote of Justice Anthony Kennedy. But no responsible lawyer could advise such a step, even though, as a technical legal matter, the administration has by far the better argument. Kennedy is too unreliable; he has sided with the military in neither of the two previous cases; and he is too much of an enthusiast for judicial power. Relying to him is a sucker's bet. The administration has to shift policy to shore up its position.

The danger is simple: that the Court will assert the power to review the detention of aliens held abroad as enemy fighters not merely as a statutory matter but as an inherent feature of its role under the Constitution. It could do this narrowly, pegging its expansion of its territorial purview to the admittedly peculiar status of Guantánamo, which is sovereign Cuban territory leased in perpetuity to the exclusive jurisdiction and control of the United States. It could also act more boldly and suggest that it has the power to review such detentions anywhere else as well.

These holdings may sound attractive to human rights advocates and liberals who consider any defeat for the administration as a win. But you don't have to be Dick Cheney to see the danger for the executive branch of the broader holding and the perverse unintended consequences that either would carry.

A Supreme Court ruling that Guantánamo is effectively part of the United States for legal purposes would be a headache, not a disaster, for the administration. It would simply decrease the likelihood that the military would bring detainees there in the future. Human rights advocates like to imagine that it would bring captives to this country instead. But they're dreaming. In many instances, future detainees are likely to go instead to places far less open and accessible than Guantánamo: Bagram air base in Afghanistan or similar facilities, secret prisons run by the CIA, and--in a pinch--naval vessels in international waters are all possibilities. Many would probably be transferred to allied governments with less respect for human rights than the U.S. military.

The administration's detention policies have given a bad name to the idea of having some secure facility close by American shores but subject to limited oversight by its courts. But the current Bush administration is not the first to use Guantánamo for this purpose. The George H.W. Bush administration and the Clinton administration alike brought Cuban and Haitian boat people to the base, in large measure to avoid granting them legal rights in court. Changing Guantánamo's status will not reduce the value of such facilities to presidential administrations facing crises that require large numbers of detentions. It will only ensure that such operations don't happen in the most convenient spot for them.

A broader holding would be a disaster for the executive--and not just this executive. The idea that anyone held anywhere in the world by United States forces has access to its courts would be a sea change in the balance of power between the branches of government. Such a ruling stands to involve courts in quintessentially military decisions and would consequently cause military commanders to think constantly about the litigation implications of operations that might involve captures--much the way law-enforcement officers have to structure investigations so as to preserve the viability of the criminal case they are putting together.

Nor, again, would the consequences be uniformly salutary for human rights. Making detentions too legally cumbersome creates an incentive not to capture the enemy but to kill him. This incentive already exists to some degree even with a broad detention power; making that power less certain only accentuates the problem. What's more, judges can only review those detentions which are acknowledged publicly--which will make programs like the CIA's black prison sites all the more attractive. Nobody who values the ability of the executive branch to fight wars under modern standards of civilization and decency should hope for such a holding.

I can think of two possible ways for the administration to avoid it. The first is to close Guantánamo, bring its current crop of detainees to the United States, and, in doing so, acknowledge federal court jurisdiction over their cases. The Supreme Court would, as a consequence, have no occasion to decide whether it would have had jurisdiction had the detainees remained beyond American shores. The advantage to this resolution is that it solves a major public diplomacy problem even while avoiding the possibility of an adverse Supreme Court decision. Guantánamo is causing serious damage to American prestige, after all, and closing it could be a step toward repairing that damage.

The trouble with closing Guantánamo is that the military will just have to rebuild it somewhere else. Many of the people there cannot easily face criminal trial yet are too dangerous simply to let loose. So one way or another, the American military is going to be holding them without charge for a long time. As long as it lacks clear legislative rules that specify procedures for these administrative detentions and future ones, any facility used to house the detainees will become Guantánamo in the public mind--and in the all-important judicial mind as well.

The better way to avoid getting crushed at the Supreme Court is to use the next several months to create those procedures. For an administration in political freefall facing a Democratic Congress, this is a not an easy prospect. But the administration has already conceded that there will be some judicial review of Guantánamo detentions--specifically, review of the determinations made by the ad hoc tribunals it set up to determine whether individuals have been properly classified as enemy combatants. If the administration and Congress could now agree on the rules that should govern both these tribunals and their review by the courts, it would cease to matter whether the detainees were held in Guantánamo or somewhere else. And the Supreme Court might then have some confidence that if it sided with the administration and kept its hands off the base that it wasn't signing off on indefinite detentions of individuals who have no meaningful opportunity to challenge their status in court.

To be credible, such rules would have to allow the detainees access to lawyers, which the current rules forbid, and to allow those lawyers--though not the detainees themselves--the ability to attack the government's classified evidence. They should make it easier for detainees to present evidence of their own. And they should result in a written, public record which a reviewing court can assess based on specified statutory standards. While such strong statutory detention rules, like an adverse judicial ruling, risk creating perverse incentives for future detentions, designed properly, they would be a far cry from the endless habeas litigation that waiting to lose might bring about.

At this point, it's probably the best deal the administration can hope for--and, happily, that deal looks a lot like the policy it should have sought on its own from the beginning.

By Benjamin Wittes