Of the 166 detainees who remain in the detention camp at Guantanamo Bay, Cuba, the Obama administration says 46 can't be prosecuted in a court but are too dangerous to transfer. They are America's "indefinite detainees," stuck in legal limbo. The president doesn't have a plan for them.
Despite the risks, there are only two legitimate options for a nation that respects the rule of law: Charge them or release them. If President Barack Obama doesn't do one or the other, he jeopardizes his legacy and America's good name.
Basic details about the 46 (and two more who have died, one of a heart attack and one by suicide) were obtained recently by the Miami Herald after it sued the Defense Department. The list includes prisoner names and where they are from: Most are Yemenis and Afghans.
What we don't know are the details of their cases. Those are classified.
The Obama administration says we have to take it at its word that the men can't be tried largely because the evidence against them was tainted by Bush-era torture.
We should trust, too, that they are too dangerous to be returned home or transferred to another country.
It's the same trust we should extend to the administration's sweeping collection of domestic phone and Internet data. And the president's decisions to deploy lethal drone strikes overseas.
Those same expectations of trust were exhorted by the Bush administration when it said the terrorist-holding facility situated beyond the reach of American law (a plan foiled on that score by the U.S. Supreme Court) was designated for terrorists considered "the worst of the worst."
Eleven years later that claim is laughable. Large percentages of Guantanamo prisoners turned out not to be terrorists but low-level Taliban foot soldiers or innocent people for whom we paid multi-thousand-dollar bounties. Meanwhile high-value terrorists like Khaled Sheikh Mohammed, the alleged mastermind of 9/11, weren't initially sent to Guantanamo and spent their first years after capture in a black-site CIA prison.
Trusting the executive branch to imprison people with no independent check is not the basis of a legal system of confinement, no matter how compelling the rationale.
Congress can't be trusted, either. It continues to use the predicament of Guantanamo's prisoners for political posturing. When President George W. Bush transferred out more than 500 of the 779 prisoners once housed there he had "Congress' support," as Obama noted in a speech last month at the National Defense University.
But when Obama attempted to make good on his first-term promise to try or transfer the remainder and close the prison camp, Republican opportunists and scared Democrats slapped transfer restrictions on must-pass legislation out of ersatz security fears. Eighty-six detainees who were cleared for release years ago have been stuck behind this congressional resistance, resulting in the hunger strikes by prisoners and the really bad worldwide PR.
Yet even if Congress were to join Obama's efforts to close Guantanamo — and a bipartisan Senate Armed Services Committee defense bill that's on deck would do that — the president's plans for the 46 indefinite detainees are unacceptably murky. Obama cares about the issue, to his credit. But when he says this "legacy problem" can be solved "consistent with our commitment to the rule of law," he doesn't specify how.
We would never accept Americans held indefinitely without trial by a foreign power. But we are creating a how-to manual for other nations by denying due process to our foreign prisoners on the basis of perceived dangerousness.
Once American troops withdraw from fighting in Afghanistan at the end of 2014, there will be no active hostilities that can justify holding people under a theory of wartime detention. That's the administration's deadline — and Congress' too.
Under the "Willie Horton" theory of politics, it is safer to keep people locked up than release them to potentially commit heinous acts. But prisoners held indefinitely without charge also diminish our safety by weakening America's international standing. There is no such thing as perfect security. We must take the risk.