If there is a historical analogy to be drawn here, it is with the legal tactics of segregationists in the years following the Supreme Court's famous 1954 Brown v. Board of Education decision. In its second Brown decision, the U.S. Supreme Court ordered the segregated school districts to integrate themselves "with all deliberate speed." Segregationists took that message to heart, literally taking decades to integrate their schools (a taskwhich some say has still not been accomplished). Segregationists used every legal tactic imaginable to delay the progress of integration—from filibusters in the Senate on civil rights legislation, to crazy school districting schemes, to literally standing in the schoolhouse door of Central High School in Little Rock, Ark. Eventually, the legal principle of equality won, and segregation faded into the history books, but it took a protracted fight to make the Supreme Court's Brown decision a reality.
The issue here is not so much the detainees' rights per se (although the detainees might say otherwise) as the need to restore the U.S. commitment to the rule of law in the eyes of the world. To date, the United States has not been able to enlist many of its allies to help shoulder the burden of Iraq, and Sen. John Kerry is unlikely to do much better given the current state of animus toward the U.S. in the world. Treating the wartime detainees fairly by giving them a fair hearing before a neutral magistrate (as ordered by the Supreme Court) would go a long way toward rebuilding bridges with our allies abroad. American moral leadership on these issues will also help win hearts and minds in Iraq, where the parallels between the Abu Ghraib abuses by U.S. soldiers and Saddam Hussein's henchmen are all too easy to draw. But none of that will happen if the United States continues to drag its feet, kicking and screaming at every step of the way. Indeed, if the fight to implement Rasul takes as long as the fight for equality after Brown, then many of the detainees at Gitmo could die in captivity before they see their rights vindicated.