How to Fix Guantanamo

The Supreme Court's ruling in Hamdan v. Rumsfeld totals 185 pages and can be summarized in two words: Start over. If the Bush Administration wants to try terrorism suspects at Guantánamo Bay in special military tribunals, it can't just declare them legal--it needs to work with the other branches of government to make them so. That in itself was a rebuke to the Administration's claim that it alone can decide how to defend Americans from terrorism. What the court did not say--despite the exultation of civil libertarians and the outrage of advocates of executive power--is that Guantánamo has to be closed. In fact, there are plenty of people who believe it's possible to comply with the court's ruling while protecting American citizens and extracting useful intelligence from detainees. In other words, there are ways to fix Guantánamo.

1. The White House must work with Congress

The White House finds itself in its current Guantánamo predicament because it didn't play well with the other branches of government--or even play with them at all. Republican Senator Lindsey Graham of South Carolina, a military lawyer (JAG), says he tried as recently as 18 months ago to interest the Administration in an amendment that would give tribunals congressional authorization. "I could not get agreement with the White House," Graham says. "They believed it wasn't necessary."

Now that it's beyond necessary, but legally mandated, the White House will find it has a far less compliant Congress than it would have had immediately after 9/11. Complicating matters further is that Congress is exhibiting its usual election-year pathologies. Democrats, wary of being lumped in with al-Qaeda should they introduce a bill that protects the rights of terrorism suspects, are calling on the White House to make the first move. Republican lawmakers are already divided between those eager to impress security-minded voters back home with a tough new tribunal and others, like Virginia's John Warner, who warn that moving too quickly or too carelessly might lead to another embarrassing showdown with the Supreme Court. It may take months to achieve the harmonic balance between good policy and good campaign agitprop, but any Guantánamo policy that eventually emerges could have greater certainty and legitimacy for having been forged through the chaos of democracy. "The message is that Congress has a role in the war on terror and the courts have a role in the war on terror," says Graham. "When we collaborate, all three branches, we're stronger as a nation."

2. Repatriate the small fish