Who are the prisoners? Vice President Cheney publicly claimed that “they were the worst of a very bad lot … devoted to killing millions of Americans, innocent Americans." Secretary of Defense Rumsfeld declared that they were “among the most dangerous, best trained vicious killers on the face of the earth.” But the Bush administration knew early on that these assertions were misleading. Major General Michael Dunlavey, chief of intelligence operations at Guantanamo, was told in February 2002 “that as many as half of the initial detainees were thought to be of little or no intelligence value.” Lawrence Wilkerson, chief of staff to Secretary of State Colin Powell, has written that several administration leaders became aware at an early date on “that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.” Wilkerson has further testified that Cheney, adopting a view also held by Rumsfeld and Bush,

had absolutely no concern that the vast majority of Guantánamo detainees were innocent, or that there was a lack of any useable evidence for the great majority of them. If hundreds of innocent individuals had to suffer in order to detain a handful of hardcore terrorists, so be it.

One detainee was a German named Murat Kurnaz. Pentagon officials concluded in 2002 that he was not tied to terrorist activity. Kurnaz was nonetheless detained and tortured in Guantanamo for an additional four years. His story is far from unique. (By the way, Slate has just published a lengthy excerpt from the memoir of another Guantanamo prisoner, Mohamedou Ould Slahi, who endured years of torture. Slahi remains in Guantanamo. A federal judge ordered his release in 2010, but the Obama administration appealed the ruling.)

It is worth recalling that of the more than 600 prisoners transferred to other countries, the vast majority have recovered their freedom and are leading peaceful lives. A few have engaged in terrorist activities, but their number has been exaggerated by misleading and poorly sourced government reports.

Why does our government continue to detain over 100 prisoners it has no intention of charging with a crime, including 86 it has cleared for transfer? The question elicits a lot of finger-pointing; it seems the problem is always someone else’s fault. The truth is that there is a lot of blame to go around: President Obama, Congress, the courts, the media, and the American people all share responsibility for this catastrophe.

Immediately after taking office, President Obama announced his intention to close Guantanamo Bay within a year. Why the promise was left unfulfilled is a complicated and sad story, much of which is covered in this Washington Post report.

In any event, President Obama delivered a speech in May 2009 making clear that his idea of “closing Guantanamo” meant something very different from what human rights advocates had in mind. He would transfer Guantanamo detainees to the U.S. mainland, but continue to hold several of them in indefinite detention without trial. As Tom Tomorrow writes, "what Obama tried to do was move the entire system of indefinite detention, intact, onto American soil.”

Then, in December 2009, a Nigerian man who reportedly had received terrorist training in Yemen tried to blow up an airplane headed for Detroit. Yielding to demands by Republican and Democratic members of Congress, President Obama announced that he was suspending the transfer of any prisoners to Yemen. This executive ban remains in place today, trapping the 89 Yemeni prisoners (56 of whom were cleared for transfer), since they are unlikely to be offered refuge in third countries. In the words of Baher Azmy, legal director of the Center for Constitutional Rights, “the moratorium amounts to collective punishment based purely on where they happened to be born.”

Beginning in January 2011, Congress enacted restrictions on the transfer of Guantanamo prisoners to other countries, regardless of their personal guilt or innocence, a measure that violates elementary principles of morality, due process, and human decency. The legislation, however, gives the president the authority to issue waivers in the interest of national security, a power that President Obama has not yet seen fit to invoke. As Azmy explains,

It is true that Congress added unnecessary restrictions on the president’s authority to transfer detainees home or to third countries (or even to the U.S. for trial), in the 2011 National Defense Authorization Act (NDAA) and the 2012 version as well. But what is equally clear is that Congress has given the president the authority to waive those restrictions, by invoking the very same criteria the administration itself used to transfer the men before the passage of the NDAA.

Where does this leave us? Recent statements by President Obama and Senator Feinstein provide hope that a change of course is possible –Both the president and Congress (separately and together) can take steps to end the tragedy of Guantánamo. Congress should repeal legislation restricting the transfer of Guantanamo prisoners. President Obama should lift the moratorium on sending prisoners to Yemen, and use the national security waivers to authorize the release of individual prisoners. Members of Congress should speak out publicly in favor of these measures. (See the latest New York Times editorial on this topic here .)

Please call and fax President Obama, your senators, and congressperson to demand that all Guantanamo prisoners are promptly released unless they are charged with a crime, and to request that U.S. officials enter a respectful dialogue with the prisoners aimed at securing a voluntary (not coerced) end to the hunger strike.

The White House comment line is 202-456-1111. The Congressional switchboard is 202-224-3121. You can send a free fax to your senators and congressperson. Let’s do this, and bring a terrible chapter in U.S. history to a swift close.

