What to do with Gitmo detainees

Lindsay Graham and John McCain:

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How do we prosecute detainees suspected of committing war crimes now that military commissions have been suspended? How should we handle those detainees who cannot be tried, but who are too dangerous to release? Where will we house them? How should we deal with detainees who, if released, would return to the fight against us? How do we deal with the prisoners held at Bagram Air Base in Afghanistan where some detainees captured outside Afghanistan are being held?

There are no easy answers. As senators who have struggled with these issues for years, we believe some basic principles can help us find a common path forward.

- First, do not confuse war with common criminality. The detainees held at Guantanamo are not common criminals, but warriors the vast majority of whom are fundamentally committed to the destruction of our way of life. The appropriate legal foundation upon which detainee policy should be built is the law of war, along with procedures adapted from our military justice system.

- Second, military commissions remain the appropriate trial venue for these individuals. We would strenuously oppose any effort to try enemy combatants in our civilian courts. By an overwhelming bipartisan vote in 2006, Congress passed the Military Commissions Act, which set forth procedures for trying enemy combatants for war crimes.

Our domestic criminal laws -- including their treatment of classified information -- are ill-suited for the complex national security issues inherent in the trial of enemy combatants. We have great faith in our military justice system -- appropriately modified for war crimes trials -- and we believe that military judges and lawyers render fair and impartial justice not only for our troops, but for enemy combatants as well.

- Third, preventive detention will continue to have a place in the war on terror . Under the law of war, the idea that an enemy combatant has to be tried or released is a false choice. Rather, it is well-established that combatants can be held off the battlefield as long as they present a military threat.

While there is little doubt that we initially cast the net too broadly in determining who merited enemy combatant status, the Department of Defense estimates nearly one in 10 detainees released from Guantanamo have returned to the battlefield, including Said Ali al-Shihri (al Qaeda in Yemen's second-in-command), and Abdullah Gulam Rasoul, who reportedly now serves as the Taliban's operational commander in southern Afghanistan. We cannot let this continue.

A significant group of detainees still in custody at Guantanamo may be too dangerous to release, but they are not suitable for war crimes trials. In these cases, a system needs to be devised in which a designated national security court, with a uniform set of standards and procedures administered by a civilian judge, hears the petitions for habeas corpus authorized by the Supreme Court, and an annual interagency review is conducted to determine whether the detainee remains a security threat to the United States.

- Fourth, we must address the detainee situation at Bagram in Afghanistan. An improved system for reviewing the need for further detention of detainees is required at Bagram -- but we must not lose sight that Afghanistan is still an active theater of war and we cannot impede the ability of our Armed Forces to fight the enemy. We are encouraged that the Department of Justice has appealed a ruling by the D.C. district court that extended habeas corpus rights to detainees held on the battlefield in Afghanistan. In its motion, the Department of Justice argued that allowing the ruling to stand would harm our military's ability to win the war.

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Graham and McCain are trying to thread the needle between warfare and lawfare. They are certainly closer to the answer to this problem than Obama has been, His naive liberalism is creating a dangerous situation that may let many of the enemy's worst actors go free. We should continue to detain all of them until the end of the war, regardless of whether they are tried for their war crimes.