Fortunately, the Defense Department already has a solid policy in place for the processing of detainees on the battlefield: Army Regulation 190-8 (Enemy Prisoners Of War, Retained Personnel, Civilian Internees and Other Detainees). Unfortunately, the White House, Justice Department, and Pentagon have gotten in the way of consistent implementation. The two congressional armed services committees should act to codify AR 190-8. Doing so would prevent the executive branch from nullifying this regulation and buttress the rule of law in the conduct of American military operations.

In addition to this policy, the Defense Department must develop better screening mechanisms for its implementation. Today’s intelligence analysts and interrogators have come a long way since 2002, when Arabic language and cultural knowledge was nearly nonexistent in the Defense Department. Still, our intelligence community lacks the “human intelligence” assets and capabilities it needs to effectively interrogate prisoners from that region. That hobbles the military’s ability to make sorting decisions, let alone gather valuable intelligence. The war against Islamic fundamentalism is unlikely to go away soon; the Defense Department should redouble its efforts to build its linguistic and cultural intelligence capabilities for the Middle East.

Repudiate All the Torture Memos: In December 2004, the Justice Department rejected the reasoning of its infamous August 2002 “torture memo,” which effectively defined “torture” out of existence. Several other memoranda published by the Defense Department and other government agencies, however, appear to still be in effect. Reports indicate that several classified legal memoranda authorize a list of coercive interrogation practices for these agencies, including the CIA. Notwithstanding powerful rhetoric from Sen. John McCain and Sen. Richard Durbin, among others, congress has done little to repudiate these memos. The time has come for our elected representatives to take a stand by stating that it is the policy and law of the United States not to torture its enemies, nor subject them to cruel, inhuman, or degrading treatment.

Likewise, the Defense Department must make this policy clear to its troops in the field and eliminate any “military necessity” exception to this rule. The slope from small war crimes to large ones is slippery; in the heat of battle, some necessity may always be found to justify even the most heinous of acts. Bright-line rules are the only ones that work in wartime, and the secretary of defense must lay down the law as the constitutional officer responsible for civilian control of the military.

Get Rid of the Military Commissions: In November 2001, President George W. Bush unilaterally declared that the United States would try captured foreign terrorists by military commission, similar to how the United States tried German saboteurs during World War II. However, it’s not clear the president has the power to do so, and the courts have harshly criticized the rules he adopted. Eventually, the Supreme Court may have to resolve the matter. But there’s an easier solution than litigation: congressional action. If the United States wants to try these terrorists instead of simply incarcerating them for the duration of the war, then congress should amend the Uniform Code of Military Justice to provide for that option. Congress should spell out clearly the terrorist acts that constitute war crimes eligible for military commission, the procedures for those trials, and the procedures for appeal. Congress should also draw up rules of evidence for the commissions, which must grapple with such thorny issues as whether evidence produced in coercive interrogations can be used. In doing so, congress should ensure these commissions conform both to the Uniform Code of Military Justice and the customary laws of war.

Embed Reporters at Guantánamo: The Pentagon’s “embedding” experiment during Operation Iraqi Freedom was perhaps the greatest success of the war. The reporters traveling with U.S. and coalition units brought an unprecedented level of transparency to the war, enabling the world to see both the humanity and the effectiveness of American combat forces. If there is one thing in short supply at Guantánamo, it is transparency. That, coupled with the administration’s obfuscations about torture, interrogations, detention policies, and other matters related to the island base, has completely destroyed any credibility the United States has regarding this facility. Embedding reporters at Guantánamo, and in military prisons generally, may be the only way to tell the American side of the story with any credibility. These journalists will undoubtedly uncover problems, because problems exist in any military unit or facility. Additionally, measures will have to be taken to ensure the journalists do not violate the 3rd Geneva Convention’s prohibition on subjecting detainees to public humiliation. But, on balance, that is a risk the United States must take to get its story told. This measure will be particularly important as a preemptive step if the United States chooses to eventually shut down Guantánamo and release a group of detainees who will be sure to tell their stories.

Retain the Most Dangerous: Even if the United States closes Guantánamo, it should not release the “worst of the worst,” estimated to constitute between 10 percent and 30 percent of the prisoner population there. The intelligence community should work with allied intelligence agencies to identify these individuals for continued detention, and screen them thoroughly to eliminate both false positives and false negatives. Next, the U.S. military should construct a new detention facility somewhere other than Guantánamo Bay. Its very name has simply become too tainted for future use. One possible location would be the island base of Diego Garcia in the Indian Ocean; another option would be to locate separate detention facilities in secure areas of Iraq or Afghanistan for prisoners captured in those respective countries. The United States should build and operate this facility in accordance with international law, and invite reporters and human rights officials to observe. American interrogators should continue to question the prisoners there, but they should do so in accordance with the laws of war, which generally allow interrogation, but not coercive interrogation measures such as those authorized over the past few years.

Send the Rest Home: Although the 3rd Geneva Convention clearly allows the United States to detain prisoners of war for the duration of active hostilities, it is no longer a prudent course of action with respect to the bulk of the Guantánamo population. Leaked reports from the military and the Red Cross indicate that the vast majority of prisoners have no intelligence value. They were either foot soldiers for the Taliban or al Qaeda; snatched up by allied forces for a U.S. bounty; improperly screened at the point of capture; or somehow swept up and captured as a victim of circumstance. Holding these prisoners does keep them off the battlefield. But their continued captivity does more harm than good to the U.S. war on terrorism, and they should be released to their home countries for further detention or release.

The very word Guantánamo carries a negative connotation throughout much of the world, one that is antithetical to American values and America’s strategy of spreading freedom and democracy. It’s time for the United States to cut its losses there, while salvaging what it can.