This ironically bipartisan misbehavior leaves military justice as the only way to clear the backlog of prisoners. Yet military courts have secured only a handful of convictions since 9/11. In contrast, more than 400 terrorists have been convicted in Article III federal courts and are now serving long -- sometimes life -- sentences in federal supermax prisons.
Still, the tough questions remain on hold. For Gitmo's so-called "Final 50" detainees, where there is inadequate evidence to charge and try them but real concerns about the danger of releasing them -- even to other countries willing to accept them -- is the answer to let them go free? And, if not, does "preventive detention" square with the Constitution and American values? Should the Geneva Conventions -- which specify procedures for capture and imprisonment of enemy combatants -- be updated?
2. The blurred line between domestic and foreign intelligence.
After 9/11, the law enforcement community -- from state and local police to federal agencies and even a few private security contractors -- understandably sought to expand their capabilities to thwart terror attacks. A few police departments in this country began to operate far outside traditional jurisdictional borders, even sending officers to the Middle East.
It is true that state and local police -- our cops on the beat -- are more likely to identify and disrupt the next terror plot than a bureaucrat in Washington. And there have been many successes, including the plot uncovered in 2005 to target synagogues and military recruiting offices in my former congressional district in California. But there needs to be a clear framework for law enforcement to work within, and that conversation needs to take place now.
While few disagree on the need for such a discussion, the tortured history of the Violent Radicalization and Homegrown Terrorism Prevention Act -- legislation aimed at better understanding the "tipping point" between using constitutionally protected violent language and committing an illegal violent act -- illustrates interesting obstacles still in place. That act passed the House twice -- nearly unanimously each time. It was deliberately narrow in scope and would have done nothing more than create a nonpartisan commission to study radicalization and homegrown terrorism and then report to Congress. But certain privacy and civil liberties groups (many of which had been in the room when the bill was being drafted) attacked the act and those who voted for it, arguing it was a slippery slope and killing the bill before it ever came to a vote in the Senate. And so the legislative branch proceeds, without tools.