How to Fix Guantanamo

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"The worst of the worst" was the Bush Administration's description of the type of combatant who ends up at Gitmo. But a Seton Hall University study culled from the government's own data found that only 8% of the camp's prisoners were actually fighters for al-Qaeda. More than half were not determined to have committed any hostile act against Americans or their allies. Even Salim Ahmed Hamdan, the detainee at the center of the Supreme Court case, was Osama bin Laden's chauffeur and bodyguard--hardly the criminal mastermind that requires a country to create a maximum security prison. To its credit, the government has been trying to repatriate the less dangerous detainees as well as those who probably should never have been there. "We want to get out of the Guantánamo business if we can," State Department legal adviser John Bellinger III said in a conference call last week, "while continuing to protect ourselves and protect others."

But repatriation is tricky. Many of the detainees' home countries either refuse to take them or haven't guaranteed that they won't be tortured upon their return. Take the case of the Uighurs--five ethnic Muslims from western China--who recently left Gitmo. The State Department didn't want to send the men back to China, where they are wanted by the authorities, but after contacting scores of countries the only willing host was Albania, where no one speaks Uighur.

Regardless of the challenges, the Administration needs to continue to support the State Department's aggressive efforts to make sure that the small fish at Guantánamo move on. The logic that gave rise to the Administration's broad powers of detention, interrogation and surveillance is the logic of the worst-case scenario, of terrorist masterminds and ticking time bombs. It's consistent with that logic that a place like Guantánamo be reserved for only the most dangerous terrorists.

3. Process the habeas cases

More than 400 habeas corpus cases, in which Guantánamo petitioners are challenging the legality of their detention, are percolating around the country. Lawyers who filed some of those petitions tell TIME that they anticipate that the Supreme Court ruling will open a path for those cases to head up the chain of appeals. The Administration argues that the courts have no jurisdiction, and Congress barred judges from ruling on almost all future habeas appeals from Gitmo by passing the Detainee Treatment Act last December.

Terrorism trials in civilian courts have been a mixed bag--the prosecution of the Lackawanna and Portland cells ran smoothly, while al-Qaeda operative Zacarias Moussaoui took a federal court on a wild grandstanding ride worthy of Slobodan Milosevic or Saddam Hussein. The judges who hear the appeals may affirm that civilian courts are the wrong venue for Gitmo detainees, but the debate is too important--and too complex--to cut the judiciary out.

4. Live by the Geneva rules