The Next Battle: Transparency

The Bush Administration wanted two things. First, they wanted to round up detainees and hold them indefinitely without oversight. Second, they didn't want anyone to know what they were doing to the people they detained.

Put another way, what the Bush Administration really wanted was silence.

That's why the Supreme Court's rulings in Rasul and Hamdi dealt the Bush Administration a double blow. They not only rejected the Administration's constitutional arguments about detention, they also held that detainees had the right to speak. And once the detainees have the right to speak, they will be able to tell the world how they were rounded up and what has happened to them since.

If the Administration has acted arbitrarily or has abused or mistreated persons in its custody, giving those persons the ability to speak is bad news indeed.

For this reason, we can expect that the next struggle will be over whether hearings for detainees will be public or private. The Administration will try to close as many hearings as it can for reasons of national security. And it will try to obtain gag orders against the attorneys representing detainees preventing them from talking about the information revealed at the hearings.

Failing that, the Administration will try to quietly release as many detainees as it can over the next few weeks. But it will no longer be able to do so quiely. Releasing detainees because they are not risks to national security will lead to the inevitable question of why the detainees were not released earlier. Their release will be additional proof that the government acted willfully and arbitrarily, and used the language of national security as a convenient excuse to cover up its mistakes.

In the case of Messrs. Padilla and Hamdi, the Government may soon move to indict them criminally. As soon as it does so, however, we will begin to learn what the government did to these two U.S. citizens over the course of two years.

When the Government lost these lawsuits, it lost its right to compel slience. It lost its right to keep its mistakes a secret.

But that's part of the point of having the rule of law.