Whatever the past debates, much of the legal framework of the war on terror has been already clarified by judicial and congressional intervention.
The Foreign Intelligence Surveillance Act has largely been fixed, and few in the incoming administration seem anxious to revisit it.
On interrogation, Obama's choice is clear. The Department of Defense has already adopted restrictive standards on the treatment of all detainees -- more restrictive than the law requires. But should the DOD rules for 1.4 million soldiers, airmen, sailors and Marines be applied to the CIA treatment of a newly captured terrorist with vital information? Or should the CIA be allowed to employ still-classified, "enhanced" techniques short of torture? During his campaign, Obama promised the universal application of the DOD approach -- but this is easier for a candidate than a president to pledge.
The hardest issues concern detained terrorists. Guantanamo will and should be closed as a public diplomacy nightmare. Perhaps half of the detainees will be sent home, leaving about 100 exceptionally dangerous men. The Obama administration will need to decide on a format for trials -- much improved but politically discredited military commissions, ordinary civilian courts or some kind of national security courts created by Congress and supervised by the federal judiciary.
But the administration will not be able to try everyone. Some detainees will be too dangerous to release but too difficult to convict in a normal court setting using unclassified evidence. And any president will need the ability to hold and question newly captured terrorists outside the procedures designed for American criminals. Unless Obama returns to a simple exertion of executive authority, he will require congressional authorization to detain people. And this will expose a major tension between the new president's military responsibilities and the views of supporters who believe that detainees should only be held in preparation for trial.
By all accounts, the president-elect is taking the time to examine these issues -- and putting serious thinkers in charge of his review. Mumbai is a timely reminder that the stakes get no higher.
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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