The clock is ticking down for Guantanamo Bay. Last week, the Supreme Court agreed to hear a case challenging the constitutionality of the 2006 Military Commissions Act, the legislation passed to bless the Bush administration's military tribunals for enemy combatants charged with war crimes. The act itself was a fallback: the GOP Congress passed it only after the Court struck down the tribunals in Hamdan v. Rumsfeld, leaving Bush with no claims to the lawfulness of his preferred remedy for trying al-Qaeda detainees.
Now, facing the prospect of the Court again striking down the tribunals, the administration is looking to preempt the legal challenges to Guantanamo. A faction led by National Security Adviser Steve Hadley and Defense Secretary Bob Gates is exploring a legislative remedy to close the facility and, perhaps, create a new legal framework for trying its inmates:
Essentially, the administration would propose legislation that would result in dividing the estimated 375 Guantánamo detainees into three legal categories. The one that would call for legislative action would include detainees like Khalid Shaikh Mohammed, the mastermind of the September 2001 attacks, and others whose trials would risk exposing intelligence operations. This group, estimated at two dozen to 50, would be placed indefinitely in military brigs on American soil.
A second group would also be moved to the United States, most likely to face trial in military courts, but perhaps with more legal guarantees than in the current military tribunal system.
The third, and largest, group would consist of detainees to be released to their home countries.
Strange as it sounds, such a fix would mean the administration is, at different turns, expanding and abandoning its long-held stance that enemy combatants aren't entitled to due process.
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