Spencer Ackerman July 3, 2007, 10:11 AM

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.

According to the New York Times, the legislation is in its embryonic stages. But if the second category becomes law as described, it potentially represents a reaffirmation of the military trials created by the Uniform Code of Military Justice, whereby defendants cannot be convicted on the basis of hearsay evidence or information obtained by coercive methods. It has long been the contention of military officers opposed to the tribunals, such as Lt. Commander Charles Swift, one of the attorneys in the Hamdan case, that the UCMJ trials strike an appropriate balance between internationally-recognized due process rights and national security.

More problematic is the first category, whereby the most dangerous detainees would forever be housed in military facilities. Again, the proposal is preliminary, but here a category of detainees would receive less due process than they currently do under the military commissions. Court challenges would probably be inevitable, and given the trajectory of the Supreme Court’s rulings over the last three years — all in favor of more process rights than the administration desires — the category would probably be rather short-lived. The Times describes opposition to the entire revamped framework for enemy combatants as coming from Vice President Dick Cheney and Attorney General Alberto Gonzales, so it’s possible that the first category is a way to draw them on board with the assurance that the proposal won’t withstand judicial scrutiny.

Whether Congress would bless the administration’s three-tiered proposal as the Times describes it is uncertain. But the first step is for Gates, Hadley and their allies to persuade Bush and Cheney that they have a workable plan to shut Guantanamo Bay down. And that probably requires enlisting Congressional Democratic support, difficult as it is to get Patrick Leahy to hold hands with Dick Cheney.

Indefinite Detentions, Torture