Although the prisoners (at least 12 of whom are juveniles, up from eight in May) are being held without a trial, the International Criminal Court (ICC) could handle just this sort of thing. At least we thought there was when former President Bill Clinton signed it, but President George W. Bush has since “unsigned” it and pressured countries never to surrender U.S. citizens to the court. This is nothing new, since the U.S. in 1986 shrugged off the World Court’s decision demanding reparations to Nicaragua for supporting a terrorist war against the government that killed thousands of civilians.

The Supreme Court has been a mixed bag on this issue. In June, the Supreme Court ruled that foreign terrorism suspects at Guantanamo have a constitutional right to challenge their detention without trial, overturning the 2006 Military Commissions Act, now deemed unconstitutional for violating habeas corpus, which requires prisoners to be brought before a judge. Although an Oct. 8 ruling demanded the Bush administration release 17 western Chinese Muslims, nothing has really happened because officials refuse to release them into the U.S. even for trial, again in direct contradiction with habeas corpus. They have not been considered, even by the administration, to be enemy combatants for a couple years, yet they languish in Gitmo because they fear return to China and the U.S. government won’t release them here.

Guantanamo’s situation is increasingly clouded by its use as one of the main sites of “torture” scandals. In 2002, former Attorney General Alberto Gonzales advised Bush to annul the Geneva Conventions for suspected Taliban and al-Qaida suspects: “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” I won’t trouble you with the whole document, in which he notes such a decision “substantially reduces” the threat of prosecution under the 1996 War Crimes Act, which includes the death penalty.

Of the approximately 255 incarcerated men, there are “those 80 or so really hard men” according to The Economist: “Khalid Sheikh Mohammad has ‘confessed’ he was the brains behind 9/11. God knows what the Pakistanis or the Agency did to him in prison.” There are also “a few dozen (sic) small fish — not to mention innocents — who we could easily send home.” Yet why haven’t they been? At least we can all agree on letting innocents go free?

Not Vice President Dick Cheney, who in a 2005 White House meeting illustrated the catastrophe of releasing detainees who might take advantage of their rights: “People will ask where they’ve been and ‘What have you been doing with them?’ … They’ll all get lawyers.”

If these men are going to be tried, try them in federal courts and in general abide by international law. If there is not sufficient admissible evidence to convict them, then they must be released, not held in fear that they might take advantage of their basic rights. Determine the lawbreakers of the U.S. Constitution and international law and bring them to justice. And of course, close Guantanamo. Not next year, not in a month, but as soon as possible.

Those responsible and those who don’t want to admit they’ve become their worst enemy are quite openly illustrating that they simply don’t want to face the consequences of their actions. This is not a tough decision, it’s a state of denial.