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Editor’s Note: The bipartisan congressional hysteria about moving Guantanamo Bay inmates to U.S. prisons – compounded by a flawed New York Times article about one in seven released detainees “returning” to terrorism (the actual evidence indicates less than one in 100) – has spurred a retreat by President Barack Obama.

To quell irrational fears, Obama has even proposed formalizing George W. Bush’s ad hoc approach to preventive detention and has otherwise shied away from the tough decisions necessary to restore the rule of law, as Ivan Eland notes in this guest essay:

Unfortunately, politicians claim they don’t read opinion polls, while scrutinizing them even more closely than options for their next junket. This has been most evident recently in the civil liberties arena.

On the same day he was inaugurated, President Barack Obama signed an executive order that would close Guantanamo prison in Cuba — a largely symbolic and overrated act to show his break with flagrant Bush administration abuses of civil liberties.

But Obama is not the only person in the Washington public relations circus who is perpetrating demagoguery on the issue.

The Republicans, and now the Democrats, in Congress are fear mongering over the possibility that some of the Guantanamo inmates may come to the United States. In both cases, the politicians read the opinion polls and acted accordingly.

One might say that this is laudable behavior in a democracy and that the politicians are just reflecting what the people want. However, in the United States, we have never had direct democracy.

We have a system of indirect democracy in which periodic elections are held to elect governmental representatives who are supposed to lead. One of the strengths of representative government is the realization that each citizen doesn’t have the time, energy, or knowledge to be an expert on every issue.

Of course, over time, if politicians get far off the track in too many instances on what the people regard as important and correct, they can be voted out in those elections. But in general, the public will give politicians some leeway on such matters.

For example, Ronald Reagan was and Barack Obama has been more popular with the public than their stands on the issues. The same is true with popular congressional leaders who take principled stands — for example, Ron Paul.

After the travesty of the Bush abuses of civil liberties, we need bipartisan courage to reverse the damage instead of empty symbolism or the stoking of irrational public fears.

First, although Obama has pledged to close Guantanamo, the act would be only symbolic if he retains all of the abuses that have gone on there.

Torture and mistreatment happened at other U.S. prisons around the world, and Leon Panetta, Obama’s CIA director, has not ruled out allowing the CIA to use torture in extraordinary circumstances.

In addition, Obama has refused to release photos of past prisoner abuse because he deemed them to be devoid of new illuminative value and claimed, without hard evidence, that U.S. troops overseas would be endangered by their release.

But in a republic, should the government deny citizens the right to see what it has done — even if it is grisly or shameful?

Obama is retaining military commissions, which he vehemently criticized during the presidential campaign for their lack of due legal process. Despite his pledge to limit hearsay evidence and ban evidence obtained through torture, the tribunals are still kangaroo courts that do not meet constitutional standards of due process.

Also, before he became president, Obama was one of many congressional Democrats in Congress to wail about warrantless wiretapping on people in the United States, only to eventually strengthen the law that allows such unconstitutional spying.

Despite all of the hubbub about the possibility of bringing Guantanamo prisoners to the United States, most scary are Obama’s recent musings about changing laws to allow preventive detention.

When a president can yank people off the streets merely because he alleges that they are “dangerous,” throw them in jail, and hold them indefinitely without charge, we are on the road to dictatorship.

Although Bush violated such habeas corpus rights, which have been one of the cornerstones of the rule of law in both Britain and the United States for centuries, Obama is talking about enshrining the violations into permanency.

All of this shows that Obama is not restoring the republic, but has adopted a policy of Bush Lite, which retains some of the unneeded and un-American Bush policies. (I do not accuse people of “un-American” activities lightly, but this erosion of unique American freedoms does seem to fit the bill.)

And what of Congress? Democrats now control it and should be keeping Obama honest in rolling back the horrendous Bush practices. Instead, Republicans are squealing about having Guantanamo’s terrorists in our midst and the scared Democrats are caving in to them.

Yet American prisons seem to have been able to hold the perpetrators of the first World Trade Center bombing in 1993 without being attacked or having them escape. The same has been true for domestic terrorists, such as snipers John Muhammad and Lee Boyd Malvo and Timothy McVeigh and Terry Nichols of Oklahoma City bombing fame.

The town of Hardin, Montana, with a vacant correctional facility, didn’t think it that dangerous to hold Gitmo detainees and has offered to take them. Moreover, if U.S. prisons are off limits to terrorists, where will any of those convicted be held?

Members of Congress also point to the 14 percent of released Guantanamo inmates who have allegedly gone back to terrorism. Most of the U.S. government’s allegations of the released prisoners’ supposed transgressions are either secret or vague — such as associating or training with terrorists.

[The actual evidence in the Pentagon report, which was prepared a month before the Bush administration ended, identifies only five released detainees (out of 534) who “have engaged in verifiable terrorist activity or have threatened terrorist acts,” the New York Times reported. In other words, less than one in 100 of the freed prisoners, not one in seven.]

Moreover, if the U.S. prison system had a recidivism rate of only 14 percent, correctional and law enforcement officials would be jumping for joy. Recidivism in this system can be as much as 68 percent three years after release.

Undoubtedly, this low rate is not because Guantanamo has had fabulous rehabilitation programs for terrorists, but probably indicates that people who weren’t guilty of anything were swept off the battlefield in Afghanistan because of the rewards offered to snitches in a dirt-poor country.

The likelihood that innocent people were jailed indefinitely also illustrates why preventive detention is bad and genuine legal due process is so vital.

Finally, the arrogance of the U.S. Congress is unbelievable. It expects foreign countries to bail the United States out from its self-made civil liberties quagmire.

The U.S. preventively detained people indefinitely without legal due process, proposed to try them in kangaroo military tribunals, and tortured them. Now the United States wants other nations to take released Guantanamo prisoners or ones who need to remain incarcerated.

Instead, let me suggest a “radical” solution to the entire civil liberties quagmire. Why don’t we treat alleged terrorists as criminals rather than warriors (as they should have been handled from the start), charge them if possible with a punishable offense, and try them in U.S. civilian courts.

If the evidence is not good enough to do so or it was obtained by torture, then we need to bite the bullet as a society and free them.

In the worst case, if they commit another terrorist act, it would be bad, but not more horrible than trashing the constitutional freedoms that are the bedrock of the American republic.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland has spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. His books include The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

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