Guantanamo, War, and the Rule of Law

A few reflections on a subject probably not on most people's minds on the eve of the Election: what to do with Guantanamo Bay and the prisoners we hold there. It is of great relief to me that both candidates have signaled their willingness to close Guantanamo and proceed in an honorable and legal fashion against the detainees, which includes releasing those who are not threats and who are held in error. The solution will require some practical policy decision-making as well as principled constitutional action. The most recent test of this is Kiyemba v. Bush, currently before the D.C. Circuit Court of Appeals. I am proud to have joined in an amicus brief supporting the release of the petitioners who--by the administration's own admission--are not and were never enemies of the United States and ought to be released post haste.

Elections are constitutional moments, and 2008 is something special in this regard. But we should not lose sight of the fact that one of the most important constitutional issues of our day was decided in the months leading up to this election, when the Republican Party made John McCain and not Mitt Romney its candidate. Romney, we should recall, promised to "double" Guantanamo. He repeatedly invoked the stark language of "good" and "evil" in his foreign policy discussions. And despite these moral absolutisms, he was not willing to repudiate the use of torture.

One constitutional issue for the electorate to decide has, therefore, been decided already. It is up to all of us now--or at least those of us who wish to see our government restored to lawful, rational, and moral behavior--to hold the next president accountable. Guantanamo must be closed, and the prisoners there either released or charged with crimes.

See you all on the 5th.