The detention center at Guantánamo hangs on the US like a ball and chain. Both presidential candidates and President Bush want it closed. But that won't be easy without broad consensus on how to deal with current and future detainees.
On the tip of Cuba at a US naval base, the facility was set up in 2002 for the interrogation and detention of terrorist suspects after the 9/11 attacks. It now holds about 265 prisoners, including 14 of "high value." It may have helped prevent any other 9/11-style attacks, but Guantánamo has cost America considerable moral standing in the war on terror and sowed seeds of doubt about its justice system.
Allegations of torture and the long-term holding of suspects without charge or trial may have inspired terrorist recruits and have hindered strategic and logistical cooperation with America's allies. Gitmo must go.
But shuttering the island prison raises some tough questions. What countries will take detainees who are released? Where will the others be detained? How will they be tried? And what will happen when US forces pick up more suspects?
A recent Supreme Court decision granting the Guantánamo detainees the right to challenge their detention in US civilian courts is expected to end the practice of long-term detention. Presumably, this will lead to the release of at least 120 of the suspects whom the Bush administration says it can neither prosecute nor transfer to another country. Thus, the next president will face the sometimes risky balance between personal liberty and public safety, and the challenge of managing that risk.
If Guantánamo is closed, the US will need much more help from allies and other countries so far reluctant to take the detainees. Returning them to their home countries can be tricky, for fear they may be tortured or take up terrorism (again, in some cases).
Third countries could accept the detainees – and hopefully they will, if the next president does more than simply repeat a campaign promise. The US can help these countries with monitoring, law enforcement, and international watch-lists. Still, America may have to let some detainees free in the US as immigrants if there are too few takers.
Meanwhile, prisoners awaiting trial will need new quarters. US military prisons, such as the one at Leavenworth, Kan., could work, but locals are sure to object. The concern is less about breakouts than the risk of violent rescue attempts, as Britain saw with the IRA.
And where to try the 60 or so detainees the government seeks to prosecute? In the US criminal justice system, military courts, or special military tribunals? The Bush administration is holding fast to its tribunals, designed to protect sensitive intelligence but also criticized as "second-hand" justice because of restrictions on defendants' rights.
Success rates so far may help resolve this. Since 2001, the US criminal justice system has found 145 people guilty of charges related to terrorism, including plotters to blow up planes. The tribunals produced one conviction, a plea bargain, and much controversy.
The next administration will have to be careful it doesn't simply recreate Guantánamos elsewhere, for instance at prisons in Afghanistan and Iraq, on which the Supreme Court has yet to weigh in. And it will need skill in managing that risky trade-off between liberty and safety.