And are we safer today than we would have been if the president, in 2001 or early 2002, had established a legally sustainable process for determining whether individuals brought to the prison at Guantanamo were in fact associated with the Taliban or Al Qaeda, as the State Department advised?
Are we safer than we would have been if the president had sought to devise a secure but humane policy in a good-faith consultation with Congress long before the Supreme Court forced him to do so (in the case of Hamdan vs. Rumsfeld in 2006)?
To turn the page on Guantanamo will most likely require congressional action based on dispassionate debate about our limited options. A raft of ideas from liberals, centrists and conservatives have been proposed to replace the heavy-handed detention of Guantanamo with a better system.
For instance, it is already possible to imagine a new legal framework that would allow long-term detention in the United States of a small number of detainees who would either be held with regular and rigorous judicial review of their status (much as Israel has done with suspected terrorists it detains), or prosecuted in federal court or military tribunals.
Presidential politics will likely conspire against such action before next year. This is a shame, particularly for detainees who have been held since 2002. Barack Obama and John McCain support the closing of Guantanamo, and they should each work to lower the temperature of the rhetoric. Congressional races may also make it more difficult to move new legislation forward. Experience has shown that members of Congress who support closing Guantanamo will be liable to a Scalia-type attack.
Getting out of the Guantanamo morass must be a national priority, based not on fear but on sound policy. It is long past time for the president and Congress, not just the Supreme Court, to step up to that challenge.
