Fighting stateless terrorists requires rules different from wars between nations. Since 9/11, President Bush has defined many such new rules. Last week, the Supreme Court said he cannot do it alone. He must obtain authority from Congress.
The court's ruling came on an appeal from Osama bin Laden's former driver, Salim Ahmed Hamdan, a suspected terrorist detainee. Special military tribunals set up by the Bush administration to determine the guilt or innocence of detainees such as Mr. Hamdan are not anchored in an act of Congress, the court said. About 450 detainees remain at Guantánamo Bay Naval Base. Only 10 are slated to go before the tribunals.
Mr. Bush said he would now work with Congress to fulfill the ruling – after years of saying he had authority to determine the fate of "enemy combatants" as commander in chief and under a broad, post-9/11 war-authorizing law. And, thankfully, GOP leaders in Congress appear eager to move quickly. The ruling is a reminder of the strength of three-branch government to guide the nation through difficult times of war.
Congress might simply endorse the tribunals already set up, although such panels come with very limited rights. It could allow inmates to go straight to federal courts, which could expose all sorts of military secrets in an ongoing war. Or, as suggested by the court, Congress might set up a system similar to the military court-martial, which would provide more rights than the tribunals while attempting to keep military secrets.
The court did not close the camp, perhaps out of deference to the danger some detainees pose. And moving them to another facility would not solve the question of how to try them.
So the ball is in Congress's court.
Any legislation setting a court-martial-type system would need specific language restricting the use of classified evidence. A more difficult task lies in deciding whether such panels should use information forced from a detainee under harsh conditions. That means legally defining mental or physical abuse used against prisoners, usually during interrogations.
The court said the US is obligated under the Geneva Conventions not to use cruel treatment, torture, and treatment that is humiliating or degrading. Congress will need to define those terms clearly so court-martial judges can easily determine whether to admit certain evidence obtained from detainees.
The nation has had nearly five years of debate over the balance between waging a war on terrorists and honoring civil rights. But Congress has largely dodged the toughest issues.
Now, if it passes a law that is strong on rights for detainees, there's a chance a jailed terrorist might be set free for lack of evidence – or admissible evidence. If it passes a law weak on rights, there's a chance terrorists will be convicted and locked up for decades – or that innocent detainees might be convicted or allowed to languish in jail for many more years.
The image of a US committed to justice has been damaged by the Bush way at Guantánamo. Now Congress can fix that by redefining that fine line between war and justice. No doubt the Supreme Court will weigh in again on any new law.