How to Handle the Guantanamo Detainees - WSJ.com

How to Handle the Guantanamo Detainees - WSJ.com: "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.

"