The administration defended its practices by arguing that the detainees were the "worst of the worst." But as a recent series from McClatchy Newspapers shows, that wasn't actually true. Perhaps a third of the detainees were not dangerous and had no intelligence value; they had been swept up in mass raids or fingered by mistake or out of revenge. Worse yet, as former Secretary of the Army Thomas White explained, the government actually knew this.
In last week's decision, Boumediene, the Supreme Court told the Bush administration that its methods weren't a genuine substitute for habeas. And once again, it gave the administration a choice: institute lawful procedures or ask Congress publicly to suspend the writ. At this point, however, there's no chance that Congress—now some seven years after 9/11—will do so.
What to do now? In the short run, habeas hearings can help determine if anyone at Gitmo has been held unlawfully. Justice Scalia's apoplectic dissent howled that this would cost American lives. That claim is absurd on its face. The court's decision releases no one; all it does is let detainees—some of whom have been locked up for six years—finally get the right to ask a judge to hear their case.
Nevertheless, habeas hearings are not a long-term solution to a larger problem: deciding what to do with suspected terrorists after we apprehend them. Nobody can blame the Bush administration for trying to solve this problem; but we can blame them for their solutions, which tried to maximize power and minimize accountability. There is little evidence that detention policies that actually complied with the Constitution would have been less effective in preventing terrorist attacks. But quite apart from their repeated illegality, the administration's policies have had real costs: America's reputation in the world has been badly damaged, and we've created fertile ground for new terrorists. Indeed, terrorists couldn't have dreamed up a better recruitment tool against America than our policies at Guantánamo Bay, Bagram, Abu Ghraib, and the CIA black sites.
It's unlikely that Congress and President Bush will create new detention procedures before the election. Nor should they; that is a job for a new administration, not one that has repeatedly tried to route around the Constitution. But decisions like Boumediene are only a temporary fix: We need a new system to handle suspected terrorists. During the past four years, the courts have resisted the Bush administration's illicit project of suspending habeas through the back door. Knowing they cannot solve the problem by themselves, courts have largely played defense, hoping for the political branches to respond appropriately. It is about time they did so. By better respecting the Constitution, the rule of law, and the values this country stands for, we can help restore America's honor at home and abroad.
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He blogs regularly at Balkinization.
• For another take on the Boumediene case, read Glenn Sulmasy's critique of it.