What should Barack Obama do with the 250 men who are still locked up in the Guantánamo Bay prison camp? Of the many problems the new president will face, this is one of the most difficult, and one he must get right. Along with it, he must answer equally tough questions about how his administration will deal with suspected terrorists in the future: Where will they be held and what legal rights will they have? Which interrogation methods will President Obama allow—and which will he forbid?
He made some of the answers to these questions clear in his campaign promises, and he would be wise to announce his intentions on or before Inauguration Day. Obama should and probably will renounce all brutal interrogation methods, not just those that the Bush administration defines as torture. He should and probably will discontinue or overhaul the widely derided and largely failed system of "military commissions" that President Bush created in 2001 to try suspected terrorists for war crimes. And he should and probably will announce a detailed plan to close Guantánamo, possibly within a year.
In my view, that plan should include promptly appointing a bipartisan, blue-ribbon commission to evaluate the prisoners. The commission's mandate should include an exhaustive study of each prisoner: how he has been treated at Gitmo; whether there is enough admissible evidence to prosecute him in a federal court or by a regular military court-martial; whether he appears to be dangerous; whether to release or continue detaining those who do appear to be dangerous but cannot be tried; and whether to pay compensation to some or all of those who have been wrongly detained. The commission's proceedings and final report should be public, except to allow for the protection of intelligence sources and methods. Those who are found not to be dangerous should be released or transferred to other countries. As soon as possible, Obama should move the remaining detainees to prisons inside the United States to erase Guantánamo's ugly symbolic stain on America's image.
But such steps alone may well fall short of expectations around the world and in the Democratic Party's liberal base. Even Bush has said that he wanted to close Guantánamo and denied that he sanctioned torture. Obama's global constituency and the human-rights community want him to make a clean break with Bush by banning even moderately coercive interrogation methods that may (or may not) violate international law against "humiliating and degrading treatment." They also want him immediately to abolish—not just move —the system of detention-without-charges that Guantánamo represents.
Obama should not be stampeded into taking those steps without careful deliberation. (Voters won't rush him. Only 29 percent of respondents in a recent Quinnipiac poll favored closing the prison; 44 percent were opposed.) Both policy and politics argue against deciding whether to ban moderately coercive methods until Obama and his subordinates have had time to study the disputed evidence on the effectiveness of these techniques—and until the president has sought bipartisan support (including that of John McCain) in Congress.
The hardest decision will be whether to release the scores of apparently dangerous detainees who cannot be convicted of crimes—or to continue holding them without charges in American lockups. The 250 who remain at Guantánamo (about 550 others have been released since 2002) include at least 15 alleged Qaeda leaders and another 60 men whom the Bush administration classifies as eligible to be tried by military commissions. The other 175 or so would be difficult or impossible to prosecute in any court: some have committed no crimes, and the evidence against others is inadmissible or not strong enough. The administration has deemed about 100 of those 175 to be potentially dangerous.
Some moderate Democratic (and Republican) experts argue cogently that Obama and Congress should continue to hold detainees without charges at least for a while longer, but provide them with more due process to help decide whether and when they should be released. Some have called for a new "national-security court" to sort out which detainees can be held without charges and for how long. Others counter that continuing to hold prisoners without charges will foment so much hatred of America abroad that doing so could be more dangerous than releasing them. This is a worthy debate, and it will be a real first test of Obama's resourcefulness—not just as a politician, but as a student, and former professor, of the law.