05/12/2013 11:15 am ET Updated Jul 12, 2013

The Indefinite Detention of Justice at Guantanamo


In case any doubt remains, "it is indisputable that the United States engaged in the practice of torture." Those are the words of the Constitution Project's Task Force on Detainee Treatment, a bipartisan team of 11 that systematically studied these American abuses after 9/11. While we have stopped torturing, another painful legacy of American fear and excess remains: Guantanamo. The task force recommends that by the end of 2014 we should close the Guantanamo Bay detention camp.

In this "detention camp," the American government has tortured innocent people and stripped detainees of their human rights. In this brutal prison, not only do uncharged men languish indefinitely, but so too does the American principle of the due process of law. It is detained until further notice, twisted and tortured to a point where no professor of Constitutional law could possibly recognize it.

Many Americans are deeply ashamed of our recent history of torture as well as of Guantanamo precisely because we love this country. We criticize not because we want to undermine the United States, but because we have become so attached to our system of justice that it wrenches our hearts to see us systematically violate our own founding principles.

Moreover, the harm we are doing by keeping this prison open is greater than anything its current inmates could inflict upon us if they were to resort to violence once set free. Guantanamo's propaganda value to terrorist groups enables them to easily paint us as villains and recruit an endless stream of new members as well as inspire individuals to attack us on their own volition. In addition, its very existence tarnishes the moral integrity of our nation.

How can we lecture others about freedom and human rights while we have innocent people rotting indefinitely in a brutal prison far from their homes simply for being in the wrong place at the wrong time? Of course, some of the 166 remaining detainees undoubtedly committed crimes, but only six have been charged. Keeping the rest locked up without charge and without evidence is a direct assault on the American legal system.

Any number of people might commit a crime in the future. Some who have been imprisoned may decide to resort to violence once set free. But these potentialities always exist. We decided over 200 years ago that these possibilities do not give our government the right to lock people up based on mere suspicion. That sounds more like the behavior of a paranoid dictatorship than a constitutional democracy.

President Obama is guilty of perpetuating the injustice that is Guantanamo.

Of course closing it is hard. Releasing or transferring its inmates in a responsible manner requires care, and it has been made even harder by the most intransigent, incompetent Congress in generations. But just because something is hard does not mean we should not do it. Inaction in the face of adversity is antithetical to the American spirit.

Clear courses of action present themselves. Obama can set free the 86 detainees already cleared for release; continuing to hold them is unconscionable. He can end his self-imposed moratorium and send the cleared Yemenis home; it's not their fault their country became unstable after we arbitrarily detained them. He can direct the Justice Department to either bring swift charges against the remaining inmates or start laying the groundwork to set them free. Obama can reduce Guantanamo's population in the near term using executive authority alone, but he will need Congressional action in order to transfer inmates such as Khalid Sheikh Mohammad to U.S. prisons.

Closing Guantanamo will be an important step in restoring the American morality that has been lost since the day we first "enhanced" the interrogation of a suspected terrorist, since the first innocent man was "extraordinarily rendered," since we haphazardly rounded people up in Afghanistan and Pakistan and made them disappear into dark places without bothering to investigate whether they had done anything wrong. We have not reckoned with our own abuses, and doing so is long overdue.

If President Obama is concerned about his legacy, closing Guantanamo should be at the top of his list. President Bush created this mess, but it has fallen to Obama to fix it. Sometimes a leader has to ignore the polls and simply do what is right. Ending indefinite detention without charge or trial is the right thing to do, plain and simple.

Some will try to win political points by fear-mongering and attacking Obama as weak on national security if he rectifies this injustice, but these are the same people who regularly advocate violating the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution; they will eventually be disdained along with the McCarthyists when they take their rightful place in infamy. If Obama leaves office and Guantanamo continues to stain the American conscience, history will judge him harshly for it. He will be seen as a weak, dithering president with a law degree who lacked the courage to defend the rule of law.