No blank check for Bush

TIME AND AGAIN the Bush administration has tried to use its war against terrorism to justify actions that stretch or violate US and international law. Yesterday, the Supreme Court issued a stinging ``no" to one of these practices, trying Guantanamo prisoners in military commissions that lack even the basics of due process.

Salim Ahmed Hamdan, a onetime driver of Osama bin Laden, might well have conspired in terrorism, as the military has charged. But the court said the military commission planned by the administration to try Hamdan has not been authorized by Congress and does not comply with either the Uniform Code of Military Justice or the Geneva Conventions.

The ruling does not mean that Hamdan or any of the other 450 inmates at the US prison in Cuba will go free. Some of them might well be experienced terrorists, as the administration has said. But if the administration intends to convict them for any crimes, the court has now insisted that it do so after trials that meet the standard of a US court-martial or criminal court. That means, among other things, that the accused must be present and that sworn testimony, not just written witnesses' statements, would be required.

President Bush and Republican leaders of Congress are already talking about drawing up legislation that would authorize the military commissions. Especially in light of the court's rebuke, this would only distance the United States further from its principles of justice and openness. The far better course, as Justice Paul Stevens suggested in his opinion, would be to use regular courts-martial.

Bush should use this ruling as an occasion to do what he says he wants to do -- close Guantanamo, which has become an international black eye.

The suicides of three prisoners earlier this month are a disturbing sign of what can be expected if the military continues to incarcerate the prisoners, without trials, more than four years after most were taken into custody. Fort Leavenworth or other US military facilities could serve as venues for further detention and courts-martial of the dangerous prisoners against whom there is credible evidence. The others should be released (as more than 200 Guantanamo inmates already have been) to their home countries. The United States should elicit commitments from those countries not to subject them to torture or other abuse.

The message of Hamdan v. Rumsfeld, as Justice Stephen Breyer said, is that the president has no blank check in the treatment of prisoners. Instead of trying to get Congress now to give him one, Bush should do what he should have done in 2002: Try suspects fairly in courts, military or civilian, that would show that justice has not fallen victim to terrorism in the United States.