Moderating the War on Terror

Closing Gitmo is a step in the right direction

Moderation is often an overrated virtue. You wouldn't want a moderately skilled surgeon, moderately reliable brakes, or a moderately faithful spouse. But at times, moderation means something sensible: finding ways to accommodate the legitimate concerns of two opposing groups.

That concept is a big reason Barack Obama is president. Many critics find him maddeningly vague and elusive, which they take as evidence of either incoherence or deceit. But the key to his appeal is his notion that both liberals and conservatives have a piece of the truth and public policy should incorporate both pieces whenever possible.

His decision to close Guantanamo may fit that approach. The camp was created for enemy captives in the war on terror, designed by an administration that worshiped only one goal: security. But if security were our only goal, we'd emulate the old Soviet Union, which was nothing if not safe. The U.S. Constitution presumes we can achieve security and uphold individual rights within a framework of law.

The Bush administration claimed the alternative to Guantanamo was freeing bloodthirsty fanatics to prey on innocent Americans. It got help from critics who pretended that the criminal justice system was fully suited to handle enemies captured on the battlefield. Each side dismissed the concerns of the other.

The reason President Bush put the camp where he did was the belief that Guantanamo was beyond the reach of U.S. law. In practice, that meant denying inmates the guarantees of international treaties, the protections of United Nations monitoring, or access to American courts.

Hundreds of captives were locked up for years before being released, suggesting they were innocent. Many were subjected to brutal interrogations and harsh conditions. Recently the Pentagon said one inmate may not be prosecuted because "his treatment met the legal definition of torture."

The Supreme Court rejected the idea of a law-free zone, ruling that detainees had the right to challenge their incarceration in court. It found there are some things the government can't do on the pretext of protecting the nation.

Obama agrees—as did John McCain—and wasted no time announcing he would close the facility. His order makes it clear that some prisoners will be prosecuted in criminal courts, while others will be released to their home countries or other nations. That may leave some who fall in neither category.

But just as the Bush administration showed contempt for the role of law, some critics expect too much of it. The American Civil Liberties Union insists the "detainees must be charged, prosecuted and convicted, or they need to be released." Never mind if someone poses an obvious danger: If he can't be proved guilty beyond a reasonable doubt of violating the criminal code, we must send him out to do his worst.

When it comes to ordinary criminal suspects, that makes sense. But it's not a rule for wartime. During World War II, we imprisoned hundreds of thousands of Germans and Italians on U.S. soil without trial, as prisoners of war. This war is different, but it's still a war, and the rules of war allow the confinement of enemy soldiers in this country for the duration of hostilities.

This is where hardliners on both sides converge. The Bush administration rejected designating the inmates as POWs because it would have to comply with international law governing their treatment. The ACLU and others rejected it because it would allow enemy fighters to be confined without the due process afforded to criminals.

We should give the POWs a fair chance to prove they were not combatants, since unlike with members of the Wehrmacht, it's not always obvious. Those with only a tangential connection should be let go. But even Georgetown University law professor David Cole—a tireless critic of Bush's overreaching—acknowledges, "Releasing all who cannot be convicted criminally is not a realistic option as long as the war is ongoing and they pose a real threat."

Obama will probably adopt the POW option in the end, because it's the best way to reconcile the competing interests at stake—the safety of the American people, protection of the innocent, and humane norms of conduct.

For those who think you prove your fidelity to a principle only by taking it too far, this choice will never do. But among the rest of us, it could give moderation a good name.

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