President Bush has said he wants to close the prison at Guantánamo Bay, but his administration faces a dilemma: Some Gitmo prisoners already released reportedly have again taken up arms against the United States in Afghanistan and Iraq. Others, such as the 14 "high-value" prisoners recently transferred there from secret CIA prisons, are deemed too dangerous to let go. History offers a solution to this impasse.
The story has been forgotten, but this country once before imprisoned foreigners suspected of subversion in special camps, only to wonder what to do with them afterward. Last time, the targets were 4,000 German civilians taken from 15 Latin American countries during World War II. The US government feared they were involved in Nazi conspiracies, so its agents seized them and interned them in the Texas desert – in violation of international and federal law. Like the prisoners at Guantánamo, they were a diverse group. Some were hardcore Nazi organizers with military experience. But many others resembled the more pathetic of the Guantánamo prisoners: turned in by personal rivals, picked up by mistake, or sold by bounty hunters to American officials who lacked local knowledge and language skills.
Camp commanders expecting to guard hardened Nazi saboteurs found they were holding ordinary farmers, old men, and even whole families. Eighty-one of the prisoners were Jewish refugees, some of whom had survived German concentration camps only to be trapped in a Kafkaesque system that the US government built to avoid the nuisance of the legal process.
Protests from Latin American countries, like the current international outrage over Guantánamo, had an impact. The US government improved camp conditions and began to consider how to unburden itself of the prisoners. Two decisions taken then could be relevant today.
The first decision was to allow the prisoners evidentiary hearings. As a US official involved in the program remarked of the German suspects, "whether they be innocent or guilty of subversive activities inimical to the safety of this hemisphere, it seems to me that they are entitled to have their cases reviewed somehow, somewhere." Prisoners received legal representation, could see the evidence against them, presented affidavits, and could appeal their cases to the federal courts.
The second decision applied to the majority of cases where there was no evidence of subversive activity: These prisoners were allowed to return to Germany, if they so wished, even before the war ended. Some US officials worried that they would soon face these released inmates again on the field of battle. But as Assistant Secretary of State Breckinridge Long remarked, since their numbers were small, "they would not muster a corporal's guard for the army or a great deal of intelligence for the [Nazi] cause."
Similarly, retired Gen. Barry McCaffrey recently observed that although some prisoners from Guantánamo may go to Iraq or Afghanistan to fight US forces, they would merely "join the 120,000-plus fighters we now contend with in those places of combat."
Still, to avoid providing footsoldiers to the enemy during World War II, the US government required all German men of military age who sought repatriation to sign an oath promising not to bear arms for the duration of the conflict. Perhaps surprisingly, Nazi Germany respected the oath. Young men who volunteered for military service upon return were rejected and directed to the postal service or railways, instead.
The Guantánamo prisoners may not answer to a national government that can control their actions under international agreements, but such an oath might be useful nonetheless. "Veterans" of Guantánamo who would like to take up peaceful occupations could invoke their oath to deflect pressures to rejoin the struggle against the US. Host governments, whether in the Middle East or Europe, could use evidence that a returnee had violated the oath as grounds for arrest, without waiting for a terrorist act to occur. And if American forces should capture a Gitmo veteran in battle, they could use the violation of the oath as legitimate grounds for long-term internment.
Conditional release for those who do not appear dangerous, trials for those who do: This approach worked during a world war and can be refined now. It would provide a minimum of justice to those wrongly imprisoned and a viable procedure for the rest. Congress will have to decide how any trials are to be structured, but they should include the basic principles of due process.
After discarding legal procedure for expediency's sake in the early part of World War II, the US government found its way back to legality even while dealing with a terrible enemy. What was good enough for suspected Nazis then should be good enough for suspected terrorists today.
• Max Paul Friedman is professor of history at Florida State University in Tallahassee, Fla., and author of "Nazis and Good Neighbors: The United States Campaign against the Germans of Latin America" (Cambridge University Press).