The road from Guantanamo

EVEN BEFORE the suicides of three detainees two weeks ago, the Bush administration was facing a rising outcry over the detention center at Guantanamo Bay, Cuba. Along with human rights and civil liberties organizations, American politicians from both parties and a parade of foreign and international leaders have called for its closure on legal, moral, and political grounds.

President Bush himself, in recent weeks, has raised the possibility of shuttering the facility. ``I'd like to end Guantanamo," he reiterated at an EU summit in Vienna this week. But it's not that simple, he insisted. Some of the detainees there, ``will murder somebody if they're let out on the street," he said. And the fact that the military is continuing construction of a multimillion-dollar permanent penitentiary at Guantanamo suggests that talk of shutting things down there may be premature.

Much may depend on the Supreme Court. Its imminent decision in Hamdan v. Rumsfeld will decide the constitutionality of both the special military commissions the Bush administration has set up to try suspected al Qaeda and Taliban militants and of a law passed by Congress in 2005 that denied those militants the right to appeal in federal court. Bush has said he is waiting on that verdict to decide whether to reevaluate detainee policy, at Guantanamo and elsewhere.

Many of the detention center's loudest critics are quick to point out that simply closing Guantanamo will not, in and of itself, change anything. It is not, after all, the only place where the US is holding what it calls ``enemy combatants," and the conditions and legal protections for detainees there are almost certainly better than at the other facilities: at Bagram Air Force Base in Afghanistan, for example, or in the secret ``black sites" where suspected al Qaeda leaders are sent.

Still, Guantanamo remains a symbol of the Bush administration's response to the unique security challenges of a protracted fight against Islamist terrorism, and the recent suicides seem only to have crystallized a broad consensus that the detention center represents a flawed approach. What's lacking is agreement on what a better solution would be.

While the Bush administration has all but admitted that many of those detained at Guantanamo have little if any affiliation with the Taliban or al Qaeda, even lawyers for the detainees concede that there are probably a few dozen hardened terrorists there, and they present a devilish conundrum: What to do with someone who is sworn to kill large numbers of Americans but who cannot be charged with a crime? For four and a half years, that question has been the subject of a fierce debate over the conflicting demands of security and civil liberties. But as pressure mounts to come up with an answer, a few speculative proposals have been floated for how these interests might be reconciled. In other words, what might replace Guantanamo?

If the point of closing Guantanamo is simply to remove a particularly potent symbol or to ensure the detainees better treatment, one solution might simply be to move it. Two years ago, when the Supreme Court, in Rasul v. Bush, ruled that detainees were entitled to contest their detention in US federal court, there was some speculation that they might be moved to Fort Leavenworth, in Kansas, home of the US Disciplinary Barracks. The fort already houses several hundred servicemen and women convicted in courts martial, and as a result, the staff there is particularly experienced and well trained in running a prison. Kansas, too, is far more accessible to the detainees' lawyers than Cuba, and the fact that the facility would be on US soil might mitigate the suspicion-fueled by the Bush administration's fierce battle to avoid judicial oversight-that the detainees were being kept in a legal black hole.

Such a solution, though, would hardly placate the detainees' lawyers. ``The actual closure of the physical prison known as Guantanamo," says Marc Falkoff, a law professor at Northern Illinois University College of Law who represents 17 Guantanamo detainees, ``is of considerably less importance to us than the shutting down of a system that doesn't give our clients trials or treat them under the provisions of the Geneva Conventions. It doesn't make much difference whether they're in Leavenworth, Guantanamo, or a naval brig."

As Falkoff and other detainee advocates see it, Guantanamo should not simply be replaced by a more telegenic detention center. ``If there's someone who the US authentically and genuinely thinks is dangerous, you've got an obligation to try them for a crime under the Geneva Conventions," says Bill Goodman, the legal director for the Center for Constitutional Rights, which is helping represent about 200 of the remaining 460 Guantanamo detainees. And if the government can't charge a detainee with a crime, either in civilian or military court, then he should be released.

To Eric Posner, a law professor at the University of Chicago, this sort of logic is cavalier. The prospect that the US government, for lack of evidence that would stand up in court, might have to release someone who it very strongly suspects to be a terrorist was a large part of the original logic behind the creation of Guantanamo-and that concern has not gone away. The argument made by civil libertarians and advocates for the detainees, that wrongful acquittal is simply a risk we have to take in the interest of fair justice, ``is not a crazy argument," Posner says. ``I just don't agree with it in the case of al Qaeda."

Recognizing the unique demands of dealing with defendants dedicated to large-scale killing, Michael O'Hanlon, a foreign policy analyst at the Brookings Institution, proposes what he calls a ``third way" between the trial that detainee lawyers demand and the free hand that the administration asserts. He envisions a kind of inspector general and independent prosecutor rolled into one-"someone inside the government," he says, ``who is independent of the people who originally incarcerated the detainee, someone who has the power to overrule them, and who also has access to confidential information about why the detainee might be dangerous."

O'Hanlon does not specify to whom this inspector general would report, only that it not be the secretary of defense. The creation of such a post would, he argues, establish a counterbalancing force against the Pentagon, which currently decides detainees' fates on its own. Having not been involved with the original detention, the inspector general would have less reason to keep a detainee in custody simply to save face. Classified information would be assured of staying classified. And the inspector general would be a visible figure to whom information or complaints could be sent.

Of course, entrusting one official with such decisions could leave the process just as opaque as it is now. And O'Hanlon is sketchy on how the detainees could appeal decisions or even respond to the charges against them. Still, he believes his detainee inspector general would have the practical effect of greatly thinning the ranks at Guantanamo, sending home many of the detainees whose al Qaeda or Taliban connections are tenuous or nonexistent. As a result it could help blunt much of the international criticism.

Timothy Naftali, a historian at the University of Virginia who has written on American counterterrorism policy, has proposed a measure that he thinks could make releasing detainees less of a gamble. The fact that we can't charge a low-level Taliban or al Qaeda member with a crime, he argues, doesn't mean we have to keep him locked up. Why not let him go but keep track of him?

Naftali's model is a coordinated, decades-long operation carried out by American, British, and French counterespionage forces after World War II to monitor Nazis who they thought might resort to terrorism. The Allies ``got together and established a central registry of all of these people that they had been following, so that they could share this information when these people traveled and communicated."

Today, Naftali believes, the registry could be more comprehensive, with various biometric measurements like iris scans, fingerprints, and voice imprints entered into a central database. He admits that how exactly this would work-where information would be stored, and how it would be coordinated-presents a challenge, but he envisions a combination of high-tech gadgetry and old-fashioned spying. Whatever the form, he believes that it would allow most of the detainees at Guantanamo to be released to their home countries. There might even be intelligence benefits if former detainees who are actually al Qaeda operatives tried to connect with old comrades.

Naftali concedes that such a plan is risky. It is easy in many parts of the world for someone to vanish, and there have been documented cases already of released Guantanamo detainees rejoining the Taliban to fight US forces.

But some detainee advocates also embrace the idea of a tracking system. They see it as a way to mitigate the risk that, once sent back to home countries like Saudi Arabia and Yemen-not known for their attention to civil liberties-their clients will simply disappear into prison. As Erwin Chemerinsky, a professor of law and political science at Duke Law School, puts it, ``The key is, I think, making sure that closing Guantanamo doesn't mean that detainees get even less in the way of procedural protection, and that might happen if the US sends detainees to a foreign country which argues that they're entitled to no procedural protection at all."

Drake Bennett is the staff writer for Ideas. E-mail drbennett@globe.com.