Michael Gerson

If the president, the secretary of state and the secretary of defense all want to see the Guantanamo Bay prison closed before they leave office -- as they do -- why does it remain open?

When asked this question directly, senior administration officials -- some of the ones charged with implementing such changes -- reveal the difficulties of turning a gesture into a policy.

First, they explain, countries such as Saudi Arabia, Pakistan, Afghanistan and Yemen, which exported these terrorists, don't want them back, at least under conditions we find acceptable. America insists that returned terrorists remain under lock and key, and also not be tortured. A number of nations have problems with one or both commitments.

Second, the legal procedure currently in place -- judgment of terrorists by military commissions -- has been bogged down by court challenges. "Six years in," says one official, "and we have still not done the first stages [of the legal process] for the first people we captured. Only in the United States could [Osama] bin Laden's bodyguard appeal to the Supreme Court."

And third, administration officials increasingly recognize that there is no eventual solution to Guantanamo Bay without legislation by Congress.

As much as we'd like this facility to simply disappear, it exists for a reason. Captured terrorists remain dangerous; they know they are at war with us even when we question it ourselves. And the circumstances of their capture often make normal legal prosecutions -- witnesses and proof beyond a reasonable doubt -- impossible. Some were captured by other countries. Some were identified by classified or inadmissible evidence. And in a war zone such as Afghanistan, there is little concern for preserving an unbroken chain of evidence. For all these reasons, the long tradition of war allows captured combatants to be detained until hostilities end -- not to punish them but to prevent them from returning to the battlefield.

Currently, however, these detainees are identified and held only on executive authority -- because the president says so. But this does not seem legally sustainable. The Supreme Court, in an unusual move, has reversed itself and accepted a case on military commissions. Some experts predict the court will strike down indefinite detentions that lack legislative authority. But something would need to replace that system.

Michael Gerson

Michael Gerson writes a twice-weekly column for The Post on issues that include politics, global health, development, religion and foreign policy. Michael Gerson is the author of the book "Heroic Conservatism" and a contributor to Newsweek magazine.
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