What should America do with Guantanamo’s high-risk detainees?

The case for sending them to a secure but humane prison in the United States is that keeping them in Cuba, on balance, hurts U.S. interests. Guantanamo was established to be beyond the reach of U.S. law, a premise the Supreme Court rejected in Rasul v. Bush and Boumediene v. Bush. The facility is “a propaganda tool for our enemies and a distraction for our allies,” as former president George W. Bush said in a memoir in the course of explaining why his administration “worked to find a way to close the prison.” For similar reasons, closing Guantanamo remains high on Obama’s agenda.

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There are no appealing solutions, but members of Congress who dispute the national security assessment of two commanders in chief should consider this: Transferring the detainees to the United States is an opportunity to strengthen the legal basis for their long-term detention, which becomes more fraught as the armed conflicts in Afghanistan and against some components of al-Qaeda wind down.

The legislation needed to bring Guantanamo detainees to the United States could supplement the military rationale for holding non-prosecutable — but very dangerous — terrorists with a form of administrative detention akin to civil commitment, one that could apply after the end of the relevant hostilities. Such a statute could prescribe the definition of dangerousness that warrants detention, the processes for determining a continued threat to public safety over time and the standards for judicial review.

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