Three years ago this month, the United States began detaining foreign nationals at the Guantánamo Bay prison camp. They were incarcerated, incommunicado, without charges, without trials, without access to counsel, without any of the due processes we take for granted as Americans.

One thousand days later, the nearly 600 alleged enemy combatants, mostly Afghani, remain in prison, shameful evidence that the most powerful country on earth, which currently occupies two countries in the name of establishing democracy and the rule of law, has turned its back on its own laws and those of the international community.

It is difficult to imagine what the United States hopes to gain with the unilateral declaration that it has the right to impose detention without any recourse to law and with no end in sight.

No one expects a foreign policy based on innocence and the presumption of pure intent of all parties involved. But there was a time when the United States could reasonably protest the action of governments who secretly detained prisoners and provided them no recourse to fair trials. We could reasonably protest where such tactics led to gross human rights abuses, violations of international law, torture and killings.

On what moral ground do we now stand?

There was a time when terms like “the disappeared” and the ugly specter of unchecked power brought to bear on individuals belonged elsewhere, they were the property of the world’s thugs and dictators. How do we keep them now from being applied to us?

Nothing is more contradictory of the essential idea of this republic, nothing more radically threatening to its founding principles than permitting a state to strip an individual of freedom without declaring the reason, showing the evidence for detention and providing the individual a fair means of defense.

As Joe Feuerherd’s reporting shows, even the courts have been unable to move the Bush administration to change its policies (see story). In response to court rulings, it has put in place sham military tribunals where defendants undergo secret proceedings with no right of appeal.

How does this go on with so little disturbance to the daily flow of life in Washington? What will it take for legislators to demand that business as usual cease until this blatant lawlessness end? Is it impossible to imagine the tables turned? To imagine that another power might consider certain activities of the United States so dangerous to that country’s security that it might begin secretly picking up, say, businessmen or military personnel, declaring them enemies of the state and holding them indefinitely?

In the case of Guantánamo and the parallel matter of shipping detainees to third countries for detention and probable torture, government officials are acting above the law, above scrutiny and beyond any requirements for accountability.

The ill-defined war on terror has turned into an assault on the best instincts of the United States.

Congress should demand that the administration either allow open and fair trials on specific charges for all the detainees or release them.

And very quickly, lawmakers should require a thorough, independent investigation of how the rules for Guantánamo detainees were devised and who oversaw the enforcement of those rules.

National Catholic Reporter, January 21, 2005