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Late last month, President Obama took yet another step back from realizing his promise to close Guantanamo Bay by the end of the year. The president signed legislation that erects several significant roadblocks: for the remainder of this fiscal year, Guantanamo detainees cannot be brought to the United States for release, detention, or prosecution on terrorism charges. Though the president has assured the nation that he will govern from strength rather than fear, his signing this legislation undermines such statements and reinforces Congress’ fear-mongering about closing Guantanamo.

Just recently, in an appropriate – and in this environment, even courageous – move, the Obama administration transferred Ahmed Ghailani to the United States to stand trial for his role in two embassy bombings in 1998. If the new legislation is extended beyond this fiscal year, Mr. Ghailani would likely be the last Guantanamo detainee to stand trial in the U.S., even though it is our responsibility and in our national security interests to bring him, and others like him, to justice. And the likelihood that it will be extended is good. A Republican representative asserted that Ghailani’s trial is "the first step in the Democrats’ plan to import terrorists into America." Democrats have been no better; the legislation blocking transfer of any detainees passed by an overwhelming bipartisan majority.

Congress must stop describing our obligation to bring about justice as the coddling of terrorists. Regardless of their guilt or innocence, our system of justice requires that those accused of a crime – and terrorist acts are surely crimes – stand trial. Our federal courts have successfully handled scores of terrorism prosecutions, and they can certainly handle proceedings against Guantanamo detainees with equal success. If detainees are found guilty, they can be held securely in a maximum security prison in the United States. Claims that these prisons cannot hold convicted terrorists are belied by the fact that no one has ever escaped from the United States’ super maximum security prison in Colorado, which currently houses the likes of the Unabomber, a 1993 World Trade Center bomber, and a 9/11 conspirator, among others. We have nothing to fear about allowing our federal courts to prosecute suspected terrorists and our federal prisons to detain them, pending trial or after conviction.

And let us not forget that until we conduct such trials, we do not yet know which of the Guantanamo detainees actually are terrorists. We must stop lumping all of the detainees together, without any determination that they are in fact terrorists.

This fear-mongering on Capitol Hill has not been limited to efforts to block the transfers of Guantanamo detainees. In a similar development earlier in June, Congress passed a resolution that will place every detainee ever housed at Guantanamo Bay on the no-fly list, a classified document that contains the names of those people who the government considers national security threats. If your name is on the no-fly list, you cannot fly in or out of the U.S. on any commercial airline. This overbroad legislation would restrict the freedom of all previously cleared detainees. This category includes those who have been determined to be innocent, some of whom were released after mere days at the prison, some of whom were victims of mistaken identity, and those people simply in the wrong place at the wrong time.

Some politicians are fond of making it appear that every Guantanamo detainee is a sworn member of Al Qaeda. On the contrary, since the detention facility was erected, 775 individuals have passed through its gates and over 400 of them have ultimately been released without charge. Additionally, of the 245 prisoners remaining at Guantanamo on January 1, 2009, another approximately 60 have been cleared for release and are awaiting plans to transfer them to another country. These are people who do not and perhaps have never posed a threat to our country.  Why would we deny them the right to fly in or out of the U.S. on any commercial airline?

Those prisoners who are clearly innocent – those imprisoned at Guantanamo for years and then released, or about to be released – do not deserve to be placed on the no-fly list. Compared to what they have already suffered, it may be a relatively minor inconvenience. But they have suffered enough already.

These legislative gambits show how politicians are using fear to increase opposition to closing Guantanamo. Our elected officials should engage in responsible leadership, guiding our nation through difficult times through reasoned debate and necessary compromises. They should be taking the responsible path of educating us and discussing realistic solutions to how to close Guantanamo, rather than to seeking to produce unnecessary panic by, as one member of Congress recently suggested, claiming that without the no-fly legislation, terrorists could be seated next to us on our next plane trip.

This kind of rhetoric is counterproductive. Politicians who engage in political posturing and recklessly use fear to drive legislative decisions are creating bad policy. As their constituents, we deserve better.

Originally posted to Constitution Project on Thu Jul 16, 2009 at 06:41 AM PDT.

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