Lakhdar Boumediene was abducted almost six years ago from his home in Bosnia and flown to Guantanamo. He may be a bad guy. Or he may not be. We have no idea. The reason is President Bush’s continuing war on due process, which has blighted the lives of some unknown number of innocent men while doing vast damage to America’s standing in the world.

Boumediene’s petition for release, and those of 62 other Guantanamo detainees, will come before the Supreme Court on December 5. Based on the Court’s previous war-on-terrorism decisions and its unusual alacrity in agreeing on June 29 to hear these detainees’ appeals, Bush seems likely to get his fourth drubbing from the justices since 2004.

Bush deserves to lose. But even the wisest Court decision could barely begin to fix the mess that Bush has made of detention policy. And a judicial over-reaction — along the lines urged by left-leaning human-rights groups — could tie the hands of Bush’s successors. No would-be successor has suggested a sensible alternative policy. And most in Congress punt to the courts (or to Bush) the little-discussed, quintessentially legislative question of what our policy on detaining suspected foreign combatants should be.

So here’s my hope for a three-step quick fix:

1. The justices should signal clearly during the December 5 argument that the due-process-be-damned Bush detention policy is doomed and that Bush’s bloated vision of his own powers will take a big hit if he simply awaits the decision, likely to come in June.

2. These signals will be the cue for Attorney General Michael Mukasey to persuade the president to head off a potentially disruptive defeat by going to Congress to craft a fair, fast, open administrative-detention process for sorting out dangerous detainees from nondangerous ones.

3. The Court could then abstain from deciding the pending cases on condition that the detainees get expedited hearings and appeals under the new law.

(Benjamin Wittes suggested a somewhat similar administration approach on July 9 in The New Republic Online. Now we have an attorney general sensible enough to try it.)

Boumediene is an Algerian-born citizen of Bosnia with a Bosnian wife. He and five others were seized by police there in violation of Bosnian law on January 17, 2002, and handed over to the U.S. military. The six had previously been arrested on charges of plotting to bomb the U.S. Embassy in Sarajevo, but Bosnia’s Supreme Court had ordered them released for lack of evidence just hours before their abduction.

The Bush administration claims the power to imprison these men for the rest of their lives (or until the end of the war on terrorism), without criminal charges, as "enemy combatants." But the government defines that term so broadly as to include anyone suspected of providing any kind of "support" — even an unwitting contribution designed to feed hungry children — for Al Qaeda or "associated forces."

Boumediene, who denies supporting terrorism, has never even been accused of taking up arms against U.S. forces. So how do we know he is an enemy combatant? The basic Bush answer is, "Because we say so."

The government has provided no evidence to the public, to any court, or to Boumediene that he has ever supported terrorism in any way. It has not allowed his volunteer lawyers to see the classified evidence against him, to call witnesses in his defense, or to appear at the cursory military hearing in which a three-officer, judge-free "combatant status review tribunal" — which was free to consider evidence obtained by torture — found him to be an enemy combatant. And the administration claims that it can hold Boumediene for as long as it wants no matter what the outcome of the cursory review of the tribunal decision by a federal Appeals Court in Washington provided for by a 2006 law.

In short, the process is so stacked against detainees as to be Kafkaesque and so unreliable and secretive as to be a global scandal. It has helped to make martyrs of even those Guantanamo detainees who appear to be terrorist mass murderers.

How did Bush go so wrong on this? Because he and his top advisers were drunk with power and contemptuous of world opinion. Bush’s attorneys took the most indefensibly sweeping interpretations of presidential war powers they could conjure; did their best to exclude Congress, the courts, and lawyers from decisions on how to handle detainees; and thus bypassed the checks and balances necessary to avoid grievous mistakes.

The danger of making such mistakes is far greater in this war than ever before. It is much harder to sort out terrorists lurking in civilian garb from billions of other people around the world than it was to tell which armed men on a battlefield were wearing enemy uniforms. And the consequences of erroneous detentions are especially grave in a war that could go on for many decades.

Bad as the Bush policy is, the justices have no power to change it if they adhere to their historically modest role in military and foreign matters. But they probably won’t.

In a 1950 decision, Johnson v. Eisentrager, Justice Robert Jackson declared that the courts have no power under any act of Congress or under the Constitution to hear a petition for habeas corpus — the ancient writ by which a prisoner can get a judicial ruling on the lawfulness of his incarceration — from any alien captured and held outside the U.S.

It was because of such precedents that the administration chose Guantanamo as its prison for suspected foreign terrorists who would be hard to prosecute criminally. Unlike, say, Afghanistan or Iraq, Guantanamo was completely secure — a 1903 treaty with Cuba gives the U.S. total, permanent jurisdiction and control. But because Cuba technically retains "sovereignty," Guantanamo — unlike prisons in the U.S. — seemed beyond the reach of any court.

Or so Bush’s attorneys thought. But the justices walked away from part of Eisentrager in 2004, by ruling in Rasul v. Bush that Congress had written the habeas corpus law broadly enough to reach Guantanamo.

The Republican-controlled Congress sought to undo Rasul and another 2006 Supreme Court ruling against the administration by stripping federal courts of jurisdiction to hear petitions from foreigners seeking release from Guantanamo or any other prison outside the U.S.

Attorneys for detainees argue that these laws violate the Constitution’s command that the writ of habeas corpus "shall not be suspended" except in cases of "rebellion or invasion." Five justices — the four liberals plus balance-tipper Anthony Kennedy — seem likely to agree, and to hold that the Guantanamo detainees have a constitutional right to habeas review of the legality of their detentions.

The simplest, narrowest way to do that would be to hold that Guantanamo is for all practical purposes part of the U.S., and thus that foreign detainees there have the same constitutional rights that they would have if locked up in Kansas.

This might hasten the closing of the island prison, which has become such a potent anti-American rallying cry that many top officials want it shut down in any event. On the negative side, the ensuing flood of habeas litigation would be chaotic, with different judges making up conflicting rules on who can be detained. This might tempt the military to keep new prisoners outside the reach of the courts — in Afghanistan, in secret CIA sites, or on naval ships at sea. Meanwhile, what would we do with the more than 300 prisoners who remain at Guantanamo, many of whom would be difficult to prosecute and are too dangerous to release?

A more momentous way for the Court to rule against Bush would be an unprecedented assertion of judicial power to oversee all U.S. military (and CIA) detentions on the face of the earth. This would thrust the courts deep into military matters that are far beyond their institutional competence. It would also tempt soldiers to avoid litigation headaches by taking no prisoners.

It’s not too late for Bush to avert such an outcome. What we need, an impressive array of conservative and liberal experts agree, is a comprehensive new law providing for administrative detention of any suspected foreign terrorist who the government proves cannot be released safely.

But the suspect must have a full hearing with an independent military or civilian judge presiding; with security-cleared defense counsel who can see and rebut all of the government’s evidence, call witnesses, and present evidence; with periodic reconsideration of whether the detainee remains dangerous; and with searching review of all decisions by federal judges. Wittes and Mark Gitenstein have posted a detailed proposal, "A Legal Framework for Detaining Terrorists," on the Brookings Institution website.

Bush should have pushed for a law like this six years ago. Better late than never.