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Two Takes: With 'Boumediene,' the Court Reaffirmed a Basic Principle—A Commentary by Jack M. Balkin

The following commentary was published in U.S. News & World Report on June 23, 2008.

Two Takes: With 'Boumediene,' the Court Reaffirmed a Basic Principle
By Jack M. Balkin

Shortly after the 9/11 attacks, in an early draft of the Patriot Act, Attorney General John Ashcroft proposed suspending the writ of habeas corpus indefinitely. The idea was quickly shelved.

Everyone understood the symbolism: Habeas corpus may be the most basic principle of liberty in the Anglo-American tradition. It requires kings and presidents who want to imprison people to explain themselves before a judge, and it lets judges test the legality of the detention. The Federalists who framed the Constitution originally thought a Bill of Rights unnecessary, but they did include protections for habeas corpus as the necessary first line of defense against tyranny and executive overreach. The only way to avoid habeas, the framers said, is for Congress to pass and the president to sign a law publicly declaring a suspension because of "invasion or rebellion when the public safety requires it." Even with the twin towers still smoldering in the fall of 2001, neither the White House nor the Republican majority in Congress had the stomach for that.

Instead, the Bush administration tried to achieve the same result through different methods. Over a four-year period, the Supreme Court has repeatedly pushed back at this strategy. Each time it has left the president the option of taking political responsibility and publicly calling for suspension of habeas corpus. Each time the president has chosen subterfuge instead.

The administration's first strategy was to declare people "enemy combatants" and throw them in military prisons. Even U.S. citizens, it argued, had no constitutional right to counsel to contest their detention. And courts should dismiss any habeas petitions because the president had virtually unreviewable power to detain anyone he labeled an enemy combatant and to keep them in prison indefinitely. In Hamdi v. Rumsfeld, the court rejected this extreme view. The executive could hold even citizens if it acted according to the laws of war—including the Geneva Conventions—but it had to prove in a hearing that a citizen really was an enemy combatant. Unable to meet even that modest standard, the Bush administration let Yasser Hamdi leave the country with a promise never to return, and moved Jose Padilla to the criminal justice system, where he probably should have been in the first place.

What about noncitizens? The Bush administration thought it had an even better strategy. It would find a place close but offshore—like Guantánamo Bay—where courts wouldn't even entertain habeas petitions. There it would enjoy a law-free zone where it could do whatever it liked. The Geneva Conventions might apply, but the administration decided early on to disregard them; Alberto Gonzales, later attorney general, even dismissed them as "quaint." But reports kept leaking out about prisoner abuse, even torture. Within a few years Guantánamo had sullied America's global reputation.

The court saw through the administration's ruse, ruling in 2004 that the Guantánamo detainees had statutory habeas rights and strongly signaling that constitutional guarantees were also at stake. In response, the administration tried to strip the courts of jurisdiction to hear habeas petitions from detainees altogether. It created a set of alternative procedures, the so-called Combatant Status Review Tribunals, to decide who was an enemy combatant. But it still would not officially acknowledge that it was trying to suspend habeas corpus. Instead it argued that it was merely substituting an equivalent remedy.

The problem was that nobody really believed it. The rules for the tribunals were deliberately skewed. Detainees had no right to counsel who would act on their behalf. They had limited opportunities to offer their own proof, while the government could use hearsay and secret evidence. Worse, the government could use information generated through coercion and abuse. Military lawyers were pressured by higher-ups to find that detainees were illegal combatants based on vague or incomplete evidence. Army Lt. Col. Stephen Abraham, who worked as a liaison between the tribunals and intelligence agencies, claimed that the tribunals were essentially rigged to produce a predetermined result.

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.