But just as the Bush administration showed contempt for the role of law, some critics expect too much of it. The American Civil Liberties Union insists the "detainees must be charged, prosecuted and convicted, or they need to be released." Never mind if someone poses an obvious danger: If he can't be proved guilty beyond a reasonable doubt of violating the criminal code, we must send him out to do his worst.
When it comes to ordinary criminal suspects, that makes sense. But it's not a rule for wartime. During World War II, we imprisoned hundreds of thousands of Germans and Italians on U.S. soil without trial, as prisoners of war. This war is different, but it's still a war, and the rules of war allow the confinement of enemy soldiers in this country for the duration of hostilities.
This is where hardliners on both sides converge. The Bush administration rejected designating the inmates as POWs because it would have to comply with international law governing their treatment. The ACLU and others rejected it because it would allow enemy fighters to be confined without the due process afforded to criminals.
We should give the POWs a fair chance to prove they were not combatants, since unlike with members of the Wehrmacht, it's not always obvious. Those with only a tangential connection should be let go. But even Georgetown University law professor David Cole -- a tireless critic of Bush's overreaching -- acknowledges, "Releasing all who cannot be convicted criminally is not a realistic option as long as the war is ongoing and they pose a real threat."
Obama will probably adopt the POW option in the end, because it's the best way to reconcile the competing interests at stake -- the safety of the American people, protection of the innocent and humane norms of conduct.
For those who think you prove your fidelity to a principle only by taking it too far, this choice will never do. But among the rest of us, it could give moderation a good name.
Joe Biden at DNC Women's Lunch: I Sure Miss That Serial Sexual Assaulter Bob Packwood | Katie Pavlich