What to make of the inconsistent (but honestly reported) news of the past two weeks about the administration's policy for trying Guantanamo detainees?  Knowledgeable sources call them trial balloons, even if they're not officially sanctioned. 


One thing should be manifestly clear: the president's Guantanamo Detainee Review Taskforce has not arrived at any particular solution, and the White House hasn't figured out what long-term policy should be. Occasionally, when the White House tells a reporter that "no decision has been made," they mean to use the line as a stalling tactic. 
But when it comes to GTMO, no decisions have been made. In some ways, the leaks are predictable: of course the administration would ask federal prosecutors to review some of the hardest GTMO cases. (That's what prosecutors do!) Of course the administration is looking for the safest detention facilities in the United States. 

And OF COURSE politics -- broadly defined -- plays a role in this. Kansas's two Senators have popped the Ft. Leavenworth balloon, but there are plenty of other stakeholders to consult with. It would behoove the administration NOT to float balloons, particularly about the transfer of detainees, given how panicked Congress was the last time this issue was debated publicly, and given how crucial it is that the American people -- and the world -- see the trials and detention as legitimate.  Legitimacy is driving politics here. Think of the institutional actors: the judiciary branch doesn't want a solution that bleeds over and causes people to question the legitimacy of Article III trials. The Department of Defense doesn't want a solution that brings (more) dishonor on their military tribunals process. Congress wants political cover and a say in dispensing justice. If you want to unlock Obama's brain on this issue, think about the solutions that these institutions and the broadest mass of the American people, not to mention the world -- would see as legitimate and sustaining. It's the modernist's quandary: maybe there is no such solution. But it's where Obama's head is.

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