THE BUSH administration appears to be inching toward a conclusion that most of the world reached long ago: The Guantanamo Bay prison for terrorism suspects has been a disaster and must be shut down. Both Secretary of State Condoleezza Rice and Defense Secretary Robert M. Gates have urged Mr. Bush to move Guantanamo's detainees to the United States. If he does not act, the prison will surely be closed by Congress or Mr. Bush's successor. If the president moves now, he can mitigate the stain Guantanamo will leave on his legacy. More important, he can help to create a sustainable basis for holding and interrogating foreign terrorism suspects in the future.
Closing Guantanamo will deprive U.S. adversaries, from Osama bin Laden to Hugo Chávez, of a powerful symbol they use to besmirch America and justify their own abuses. But it will not solve the problems created by the Bush administration's decision to set aside the Geneva Conventions in holding hundreds of prisoners indefinitely without charge. Nor will it address the continuing need to detain and interrogate a small number of foreign terrorism suspects who are captured far from a conventional battlefield and can't be charged under U.S. criminal law but who may pose a deadly threat to this country. The administration's attempt to create a legal basis for detentions and trials at Guantanamo, hastily approved by Congress last year, only deepened the mess -- as evidenced by recent judicial rulings that stopped the first trials by military commissions before they could begin.
Simply closing Guantanamo and transferring its prisoners to their home countries or to prisons in the United States, as several pending bills in Congress would mandate, would create another legal quagmire. The detainees almost certainly would recover the right of habeas corpus, allowing them to challenge their detentions in court. While we believe the prisoners should have that right, the result would be years of litigation challenging both the military commissions and the tribunal system the administration created for determining whether prisoners were "enemy combatants" subject to detention without charge. Both those legal systems need considerable improvement. But it would be better if the changes were implemented soon and legitimized by democratic process rather than imposed by federal judges.
That's why the closure of Guantanamo should be accompanied by legislation creating a sound and sustainable basis for holding, interrogating and trying foreign prisoners. Despite last year's failure, Mr. Bush still has the opportunity to strike a deal with Congress. He can and should offer a lot: the closure of Guantanamo and major improvements in the commissions and tribunals. In particular, those suspects to be held without trial as unlawful enemy combatants should be given far more due process. They should have lawyers and be allowed to call witnesses and challenge evidence. Their cases should be considered by full-fledged judges whose decisions can be appealed, and reviews should occur more frequently. This is far from impractical: Israel and, until recently, Britain have successfully used similar administrative systems to hold suspected terrorists.
In exchange, Mr. Bush can seek Congress's authorization to hold a limited number of foreigners in the United States without charge and to try some suspects -- such as the top leaders of al-Qaeda -- under rules that would depart from those of conventional courts-martial and criminal trials. He could create a legal system for the war on terrorism that could serve future presidents. If he fails to act, he will be remembered as the president who created the terrible mistake that is Guantanamo -- and who missed his chance to fix it.