The Smart Way to Shut Gitmo Down

The White House needs to take the lead, but don't look only at it. Unless Congress and our allies step up, closing Guantanamo Bay this way can't happen. To be sure, the administration has done far too little to work with Capitol Hill. But Congress should ensure safe and effective detention -- both by narrowly defining a category of terrorism suspects whom the executive branch can legally detain, and by mandating sensible oversight and review of those detentions by the courts.

Our allies, too, need to do more: They must seriously lessen the threat that some former detainees will pose, not just call from the sidelines for shuttering Guantanamo Bay. Washington should make it clear that the pace of the prison's closure depends directly on our partners' willingness and ability to take custody of some of the detainees and to help pressure other countries to follow suit -- all with protections against further abuse of the type that has so weakened America's standing.

Still, Guantanamo Bay is only the immediate manifestation of a much larger problem. For the foreseeable future, the United States and its partners will continue to capture suspected operatives of al-Qaeda and other terrorist groups. We need a durable, long-term framework for handling detainees -- one that lets us hold the most dangerous individuals and collect intelligence from them (including through lawful interrogation), but also (unlike Guantanamo Bay) has rules and procedures that are politically, legally and diplomatically sustainable. Neither U.S. criminal law nor the international laws of war were built to deal with networks of terrorists stretching across continents and bent on appalling carnage. So the United States, along with its closest democratic allies, ought to craft rules that are.

To get there, we should move beyond the debate between those who say that only traditional habeas corpus rights to a fair hearing can sort out these cases and those who say that noncitizen enemy fighters captured abroad in wartime have never been entitled to their day in court. We'd all be better off forging a broad agreement about the minimum acceptable conditions for any long-term detention process, firmly within the rule of law. These should include periodic reviews by an independent judge of the factual bases for a detention, under clearly legislated standards, and meaningful chances to challenge those premises with the assistance of lawyers. It's almost impossible to perform judicial review in combat zones, so we may have to make careful exemptions there. But any system without these features will lack legitimacy at home and abroad.

Both of these proposals -- shutting Guantanamo Bay and establishing robust judicial review of detentions -- carry risks. But those risks should kick-start the discussion, not end it. Detention policy is not about eliminating dangers, but about balancing and managing competing dangers. And keeping Gitmo open -- sapping U.S. prestige, alienating our allies and handing al-Qaeda a propaganda tool -- carries downsides, too.

Civil libertarians and security-minded hawks will both no doubt criticize these suggestions. But it's past time to close Guantanamo Bay. Rumsfeld, my former boss, famously described the prison in 2002 as the "least bad option." Whatever the validity of his assessment then, my plan for shutting Gitmo is less bad now.

mattwaxman@hotmail.com

Matthew Waxman teaches at Columbia Law School. He has served as acting director of the State Department's policy planning staff and, in 2004-05, as deputy assistant secretary of defense for detainee affairs.