How to Fix Guantanamo

By Nathan Thornburgh

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 Guantanamo 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 Guantanamo 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 Guantanamo.

1. The White House must work with Congress

The White House finds itself in its current Guantanamo 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 Guantanamo 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

"The worst of the worst" was the Bush Administration's description of the type of combatant who ends up at Gitmo. But a Seton Hall University study culled from the government's own data found that only 8% of the camp's prisoners were actually fighters for al-Qaeda. More than half were not determined to have committed any hostile act against Americans or their allies. Even Salim Ahmed Hamdan, the detainee at the center of the Supreme Court case, was Osama bin Laden's chauffeur and bodyguard--hardly the criminal mastermind that requires a country to create a maximum security prison. To its credit, the government has been trying to repatriate the less dangerous detainees as well as those who probably should never have been there. "We want to get out of the Guantanamo business if we can," State Department legal adviser John Bellinger III said in a conference call last week, "while continuing to protect ourselves and protect others."

But repatriation is tricky. Many of the detainees' home countries either refuse to take them or haven't guaranteed that they won't be tortured upon their return. Take the case of the Uighurs--five ethnic Muslims from western China--who recently left Gitmo. The State Department didn't want to send the men back to China, where they are wanted by the authorities, but after contacting scores of countries the only willing host was Albania, where no one speaks Uighur.

Regardless of the challenges, the Administration needs to continue to support the State Department's aggressive efforts to make sure that the small fish at Guantanamo move on. The logic that gave rise to the Administration's broad powers of detention, interrogation and surveillance is the logic of the worst-case scenario, of terrorist masterminds and ticking time bombs. It's consistent with that logic that a place like Guantanamo be reserved for only the most dangerous terrorists.

3. Process the habeas cases

More than 400 habeas corpus cases, in which Guantanamo petitioners are challenging the legality of their detention, are percolating around the country. Lawyers who filed some of those petitions tell TIME that they anticipate that the Supreme Court ruling will open a path for those cases to head up the chain of appeals. The Administration argues that the courts have no jurisdiction, and Congress barred judges from ruling on almost all future habeas appeals from Gitmo by passing the Detainee Treatment Act last December.

Terrorism trials in civilian courts have been a mixed bag--the prosecution of the Lackawanna and Portland cells ran smoothly, while al-Qaeda operative Zacarias Moussaoui took a federal court on a wild grandstanding ride worthy of Slobodan Milosevic or Saddam Hussein. The judges who hear the appeals may affirm that civilian courts are the wrong venue for Gitmo detainees, but the debate is too important--and too complex--to cut the judiciary out.

4. Live by the Geneva rules

The Supreme Court made it clear that the Geneva conventions afford Gitmo detainees certain trial rights. Less certain is whether Geneva rights should now extend to cover interrogations at the camp. The White House has held that unlawful combatants are to be treated humanely but are not covered by Geneva, which prohibits "humiliating and degrading treatment." Some techniques, like shackling prisoners for 24 hours and leaving them in their own excrement, are known to have been used at Gitmo and would certainly fall under that definition. Regardless of what the prevailing interpretations of the Hamdan decision are, the government would do well to read the tea leaves and begin envisioning a world in which officials will be forced by a future ruling similar to Hamdan to gather crucial intelligence while conforming to Geneva. Gitmo has always been a laboratory for the Bush Administration's edgiest ideas about how to fight the war on terrorism. Why not make it a testing ground for an interrogation policy that is both humane and clearly legal under the Geneva conventions?

The era of Guantanamo as a fount of intelligence may already be ending, however. There is only so much intel you can glean from a man who has been interrogated for four years. The base commander, Navy Rear Admiral Harry Harris Jr., told TIME shortly before the Hamdan decision that 75% of detainees held at Gitmo no longer face regular questioning, and some haven't faced it in six months or longer. So, as with many of the other issues raised by the Hamdan case, perhaps the interrogation debate should move away from Gitmo and focus on other places around the world where the U.S. is holding enemy combatants.

5. Lift the veil of secrecy

Guantanamo has long since ceased being just a detention center for terrorism suspects. It's a symbol, and it shapes how the world views America and how Americans view themselves. While all three branches of government need to work in concert to balance the strategic and legal imperatives involved in fighting terrorism, the White House can take a huge step toward removing the discomfort about Gitmo by opening the operation to the outside world. A few journalists have been granted access to the facility following the coordinated suicides of three inmates last month, but camera crews and reporters are often hemmed in by minders and shepherded past buildings that have been the site of Guantanamo's harsher realities--the force-fed hunger strikers, the suicide attempts. If Guantanamo is legal and effective, now is the time for the government to prove it.

With reporting by Reported by Brian Bennett, Massimo Calabresi, Adam Zagorin/Washington