The question is whether the president, exercising his powers as commander in chief, can handle the current problem by improvising what he deems suitable makeshift procedures. What we have, at Gitmo, is 450 men, mostly Arabs, who are not members of an armed force organized by a sovereign power, but who have been involved in hostile activity against the United States and coalition allies in Afghanistan and Iraq. Nobody, in the chorus of approval that greeted the Supreme Court ruling, went on to say that the bodyguard should be freed. The president is putatively correct in holding him in detention -- the court is not ruling on that point. But what transactions in the order of justice are appropriate? If we wish to establish his "guilt," by what protocols are we bound?
Something more, the Supreme Court's narrow majority holds, than that the executive branch has found it convenient to proceed as it has. It becomes a question of legislative ingenuity to devise the means to keep suspects from returning to the ranks of terrorists while we attempt to counter the great terrorist offensive.
We do have a huge psychological burden. It is that the war we're engaged in has no realistic terminus. Assume that the Iraqi insurgency were overwhelmed by the end of the year. That would not mean, in the engagement we are pressing, an end to the jihadists.
The scene in Afghanistan, as it happens, is worse by far than it was even a few months ago. Perhaps the Taliban have no concerns for Islamic advancement beyond reinstalling themselves in Kabul. But bin Laden is a soldier of international appetites. It is by no means safe to conclude that a statute of limitations will clock in after any specified historical development, when what is left to do amounts to a kind of denazification.
And this means that the prospect of years in Guantanamo faces the bodyguard protected by the Supreme Court. But faces us also, and the American public doesn't go in for indefinite detainment.