Since it opened more than five years ago, the U.S. detainee camp at Guantanamo Bay, Cuba, has existed in a sort of limbo. That, in fact, was the idea behind its creation. The Bush administration wanted a place under U.S. control but not in the U.S., in the hope of putting it beyond the reach of the federal courts.
That hope was eventually dashed by judges who ruled that the judiciary does indeed have jurisdiction. Now, having suffered one setback after another in the courts and in public opinion, the administration is looking at ways to do what its critics have long demanded: close the facility. The New York Times reports that “senior advisers to President Bush are exploring whether the White House and Congress can agree to legislation that would permit the long-term detention of foreign terrorism suspects on American soil.”
The measure under discussion would split the 375 remaining inmates into three groups. Some would be transported to the United States to be tried in military courts, possibly getting legal protections greater than those offered by the current system of military commissions. Some would be repatriated to their home countries. The third group would consist of 24 to 50 prisoners who allegedly could not be put on trial without the exposure of vital secrets, and who instead would be held in military brigs in the United States indefinitely.
This approach reportedly has drawn resistance from Atty. Gen. Alberto Gonzales and Vice President Dick Cheney but is being pushed by Defense Secretary Robert Gates and Secretary of State Condoleezza Rice. Gates says that “the biggest challenge is finding a statutory basis for holding prisoners who should never be released and who may or may not be able to be put on trial” — because of the risk of disclosing intelligence sources and the like.
It’s good to see powerful figures in the administration looking for ways to reconcile critical security needs with the demands of fairness and the rule of law. This represents a potential advance over a policy that views presidential authority as unlimited. It would give most of the detainees either a ticket home or a chance to contest the charges against them. And it would do much to defuse criticism at home and abroad of a facility where prisoners are presumed guilty and given scant opportunity to demonstrate their innocence.
Whether a special system is needed for those few dozen inmates who supposedly can’t be tried remains to be seen. Federal law already provides means for safeguarding vital secrets during criminal trials, which apparently work well. Many of the inmates could be prosecuted for violations of U.S. law.
But even some liberal critics of the status quo agree that the war on terrorism demands special rules. Georgetown University law professor Neal Katyal, for example, says that “it’s not realistic to think that all people can be tried in an ordinary criminal court.”
If the administration can show why a different approach is needed in some cases, sensible people will be open to persuasion. Congress has many disagreements with the president, but it has no desire to free terrorists or damage national security. The two branches should be able to work together to protect interests that both value.
