I remember having a conversation about the U.S. legal system with a BYU student from Germany a few years ago. I was explaining that under the American legal system an individual receives a trial by jury and a person cannot be held without being charged with a crime. She said the U.S. holds people without charging them with a crime. I replied that doesn't happen. Then, she said: "What about Guantanamo?"
I had no answer. She was right. Guantanamo is a blot on our national character. It is a living example that we don't uniformly apply the principle of "justice for all" that we repeat in the Pledge of Allegiance. It is time to close this facility.
In 2001, the Bush administration established the Guantanamo Bay detention camp to house foreign nationals who were accused of participating in the war on terror. These individuals came to Gitmo because the U.S. government wanted to deal with them in a legal no-man's land. Unfortunately, 166 of them are still there.
The Bush administration did not want them to be tried through the civilian court system because it claimed it had captured them in wartime. Housing them in the United States might subject them to U.S. judicial system rules. The Bush administration wanted the freedom to deal with them as they wished, including torturing them (an illegal act in our legal system).
At the same time, the Bush administration didn't want to consider them prisoners of war subjected to rules of the Geneva Conventions that govern those captured in wartime. Under those rules, which the U.S. agreed to in 1929, prisoners are eligible to be returned to their nation of origin, at least by the end of a war. (U.S. combat role in Iraq has ended and is slated to end in Afghanistan next year.)
Instead, the Bush administration decided to use military tribunals to judge Guantanamo detainees. But only seven of the detainees have had a military trial. The rest have been there for up to 11 years with no trial, no formal accusation and no recourse to the Geneva Conventions that would allow them rights as prisoners of war.
When President Obama took office, he promised to close Guantanamo and transfer the prisoners there back to their home countries or to the United States for trial in the federal court system. However, despite executive orders to the military to do so, Guantanamo still has not been closed. To the contrary, Congress has voted not to fund any transfers to U.S. federal prisons. And a recent poll shows 54 percent of Americans favor keeping the detainees there.
At his news conference last week, President Obama repeated his intent to close the facility: "I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed."
There is no doubt the president needs to make the case to Congress and the American people for closing Guantanamo. But more Americans, too, should urge members of Congress to preserve American ideals, even in a war on terror. All of us should remember that America should be a beacon of the rule of law to the rest of the world, a badge of honor tarnished by Guantanamo.
Undoubtedly, there are some of these detainees who are guilty, perhaps of heinous crimes. But that determination should be made by a judge and jury and not public opinion. If they did commit acts of terror against the U.S., then it should be no problem proving such activity in a U.S. court of law or sending them to their home country for a trial, if possible. If they didn't do so, they should be released.
It is far past time for Guantanamo to be closed and this tragic episode be brought to an end. We should acknowledge that the rule of law applies to everyone who is under the jurisdiction of the U.S. government.
Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU. Email: Richard_Davis@byu.edu