A SOLDIER'S PERSPECTIVE
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President Barack Obama today signed an Executive Order giving the detainees at Guantanamo Bay “the constitutional privilege of the writ of habeas corpus.” For those that aren’t too familiar with habeas corpus, it is the ability of a person to seek relief from an unlawful detention. Therefore, President Obama is bluntly saying that the detainees at Gitmo are being unlawfully detained. Is that the case?
In signing his Executive Order, President Barack Obama assured the people at Gitmo that want to kill us that they “have the constitutional privilege of the writ of habeas corpus.” For the first time in American history, enemy prisoners of war are being given access to American civil and criminal courts. Here’s the problem: under the Geneva Conventions which are referenced in the Order, these people do not meet the definition of a “prisoner of war”. All persons being held in Gitmo are being held actually for violating those conventions. But, because we’re such a great nation, we have given all these people “prisoner of war” status.
Another part of the Executive Order (EO) states that we “should seek to prosecute the detained individuals for any offenses they may have committed…before a court.” In other words, we will try them in our Constitutionally mandated court system for their “crimes” in a combat zone. So, you’re probably asking, “and?” Well, this Executive Order actually violates the very Convention it invokes.
You see, article 84 of the third Geneva Convention specifically states that prisoners of war “shall be tried only by a military court.” Since the EO states that we use Constitutionally mandated courts and the Constitution states that all treaties entered into by the government shall be as law, how do we resolve this?
Now let’s assume that the brilliant White House lawyers decide that it’s still okay to try these terrorists in our courts. Let’s also assume that they are guilty. Well, article 97 of the same convention states that we can’t put them in a “penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein.” So, where do we put them while they are awaiting death (or any other prison sentence they receive)? We can’t keep them in our jails. We’ll have to build completely new prisons and jails, hire more guards, and feed and entirely different populace just to handle these.
The problem here is that the American people – and our new Administration – think that prisoners of war, enemy combatants, and detainees are to be treated as criminals. I think it’s safe to say that not all criminals are “enemies of the United States”. They just don’t obey the law. Terrorists, detainees, prisoners of war, etc are enemies of this country. We are walking into dangerous, uncharted territory here in providing trials and courts to these people who are not recognized under any existing law or convention. Under the benevolence of the United States, they are being treated as prisoners of war.
Under the EO, the Attorney General is required to determine the “proper disposition” of those being held at Guantanamo Bay. This isn’t very difficult to figure out. Article 118 (same convention) does this for us.
Art 118. Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.
Last time I checked, we’re still fighting these people. Therefore, we don’t have to send them ANYWHERE. The bleeding heart liberals in this country are looking for compassion where none is needed. The military is doing a great job at releasing those that need to be released. It’s all over the news (and even this EO) that more than 800 individuals have been detained at Gitmo. Of those, over 500 have been returned. Therefore, there must be a reason the rest are still there (and there is).
There’s a lot to President Obama’s EO that the media isn’t telling you but that any thinking individual can see for themselves by just reading the order. The main thing is that there really aren’t any differences between the way the Bush administration is treating the facility and the Obama administration. Allow me to interpret the entire order for you paragraph by paragraph if you still don’t desire to travel to the White House page and read it yourself.
Section 1) Just a bunch of definitions of words everyone understands that are used throughout the EO.
Section 2a) The DoD has identified individuals that can be released. Well, this identification didn’t happen in the past four days, so obviously this is what the Bush administration was already pursuing.
2b) Some of these guys have been there for a long time (Khaleed Sheik Mohammed for one) and that it would be in our best interests to send them home and close the facility….”To the extent practicable”!! What does this mean? It means that, exactly as the Bush administration was doing, we’ll close the facility when we no longer need it. Those four little words provide a HUGE out for the administration that would prevent them from closing the facility.
2c) Terrorists are entitled to our constitutional rights of a trial. I’ve already addressed this above, but here’s another angle. Habeas corpus could easily be suspended in times of national emergency. I think a nation going to war is a perfect time for such an action as it relates strictly to enemy combatants. It’s not unprecedented either.
During the Civil War, President Obama’s hero, Abraham Lincoln, suspended habeas corpus until the end of hostilities with the Southern States. In World War II, when the Supreme Court wasn’t occupied by activist judges, the Court ruled that unlawful combatants were not entitled to habeas corpus and would be tried by military courts as we’re doing today. This created a very specific distinction between prisoners of war and unlawful combatants. But, because our government today wants to play nice with terrorists and lacks the backbone necessary to fight the kind of enemy we face today, we decide to try them in our courts instead of looking to history for the answers and educating the public on those answers.
2d) The cases of all detainees being held at Gitmo will be reviewed to determine the basis for their detention. Again, something that is an ongoing aspect of these detentions and was done under the Bush Administration.
2e) If we release these terrorists, our enemies will like us and be more likely to talk to us through diplomatic means. Okay, this is a departure from the Bush administration thinking.
2f) Some people at Gitmo are bad. We may not want to release them. Yup, exactly what the Bush administration was thinking. Nothing new here.
2g) Again, it’s a good idea to review these detentions, just like the Bush administration was doing.
Section 3) In one year, we will close Gitmo but we have no idea what to do with any bad guys we may still have at that time. This gives the administration a year to realize we’re screwed and better sign another EO extension. Mark my words and hold me to them: in one year, Gitmo will still be open and there will be detainees there!
Section 4a) These reviews start…NOW! GO GO GO GO GO!!!
4b) The Attorney General, the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, the Chairman of the Joint Chiefs of Staff, and other people will somehow come together in a bureaucratic kumbaya and make it happen.
4c) This paragraph establishes what this group of individuals will do, namely exactly what the Bush Administration was doing.
Section 5) Secretary Clinton will try to convince foreign governments to take the terrorists we’re trying to get rid of. Most likely the same countries President Bush tried to convince when he was in charge.
Section 6) Detention facilities must meet the humane requirements set forth in the Geneva Conventions – as they did under the Bush administration.
Section 7) Military courts and commissions are hereby halted until we figure out what we’re doing. The detainees will just sit there until we get our act together.
Section 8a) Secretary Gates can continue business as usual with all other prisoners not being held in Gitmo.
8b) If anything written in this order goes against the law (or constitutional treaties like the Geneva Conventions) or we don’t have the money to pay for it, forget what I just signed. Have a nice weekend!
8c) This order does not create rights that didn’t exist before. Does this mean that the prisoners DON’T have the right to use our courts then?
What this all boils down to really is smoke and mirrors. It really just tells the Defense Department that we better be doing things right or we’re in trouble. There are so many exceptional situations written into the order that it doesn’t really mean a lot. President Obama is devoted to ensuring that we’re abiding by the Geneva Conventions but the media and our political leaders aren’t telling us the whole story. They’re keying in on one or two sentences and trying to convince the American people that “change” has come when really there is very little changing.
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Lisa: I also met him on Are You Interested... and got the poems :-) If
sue05
Great article CJ. I’m sure there will be a lot of interesting comments to follow.
Toni
I haven’t read the EO but I’m a listener of Rush Limbaugh.
Seemed to me to be a lot of smoke and mirrors like you stated. However, there is the possibility of Congress getting involving, then all will be thrown out the window. Whatever they can screwup they will with maximum damage. That makes me very nervous.
johnston45
Great job, CJ.
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A "Young" man
Great article CJ thankyou for clearing things up. I was getting worried about the EO but now i see thats its mostly smoke and mirrors like you said!
Critical Facts
cj:
The writ of habeas requires the executive ONLY to put up or shut up. In other words, the writ requires the jailor to show but some evidence that supports continued detention.
By some evidence, I mean exactly that – some, even if but a scintilla, evidence of having committed a crime. The writ of habeas has nothing to do with guilt or innocence. It just requires the jailor – the president in this case – to meet a minimum threshold of ultimately being able to satisfy his or her burden of proof of guilt.
I fail to see how offering such privilege to gtmo detainees – a privilege that is one of the cornerstones of the western legal system since 1215 – places our country at risk.
Surely, you are not advocating indefinite detention of persons on the mere say so of a single individual (e.g., king or queen) without any evidence of a crime, are you?
Tony
thanks for telling it like it is
Donna
Thanks CJ for the post! You always keep us informed.
NY-David
I’m still learning about all this, admittedly. I will remark that, quite simply, the process needs review. If some sixty-odd “detainees” were released from Gitmo and found their way to Al Queda, then it stand to reason that someone missed something.
Obama supports a review of the whole process with an eye towards deciding their fate and depopulating the camp. Something I’ve been advocating for for quite some time.
NY-David
Amy
I guess I should feel relieved if it’s all just smoke and mirrors. But that brings up another important issue. If President Obama really knows closing Guantanamo in the next year is not a viable option, then why did he sign the executive order? Could it be to score some political points and make people perceive something that’s not quite true in order to promote a certain image which will be more politically expedient for him? If that’s the case, that indicates clear lack of integrity on Obama’s part. That’s troubling.
On the other hand if he really was going to close Guantanamo because of a strong conviction that it truly was in America’s best interest, I would be pretty upset but possibly feel a bit better knowing he had our best interest at heart even though he was wrong. My gut instinct tells me he is concerned about someone’s best interest, but I don’t think it’s ours.
Either way I think we have big problems.
Mickey
Amy, I am with you on this one too. Thanks
You always seem to have just the right words to convey the message. God Bless.
Kat
Amy,
I think we learned who’s best interest he has at heart during the campaign. He’s long been on his way to world leader, not just President of the US.
I do agree, we have big problems.
drjohn
Well done, sir.
Mickey
Thank you CJ
Kat
Thanks for breaking that down CJ.
And isn’t that just the most democratic thing to do? ha
Michael
This is what happens when we have Left-wing loons who care more about their ideology than the actual law. To them, one man’s terrorist is another man’s freedom fighter. But that’s because they can’t tell right from wrong, so it never occurs to them that in order to be a “freedom fighter” you must be fighting for…oh, I dunno….freedom? Shouldn’t that be a minimum standard for a freedom fighter? But the Muslims aren’t fighting for freedom. We know exactly what they’re fighting for, because they tell us. They’re fighting for the extermination of Israel and the subjugation of the “great Satan,” America. So one man’s terrorist is NOT another man’s freedom fighter, unless that man is insane. So Obama and his Left-wing buddies side with the terrorists once again. How many Americans will die because Obama is “President”? Unfortunately, we’re likely to find out before his 4 years are up
Critical Facts
“So Obama and his Left-wing buddies side with the terrorists once again.”
And, um, er, eh, just how did Obama side with terrorists? Michael, don’t be such a freeping loon with your comments!
CJ
There’s nothing “freeping loony” about what he said. Obama has sided with terrorists by giving them our game plans. He’s told them EXACTLY how to prepare against our methods, tactics, techniques, and procedures. What other military in the WORLD gives away their interrogation plans? He has also told terrorists that there are no consequences for fighting dirty – that they will be treated just like a true noble Soldier when they are captured and provided all the benefits they are given.
They have been given access to our courts and lawyers! Now, you tell me how this is NOT siding with the terrorists, conscious or not!!
Mickey
CJ, Amen, Amen can everyone say Amen
Critical Facts
Giving them our game plans? Come on, man, there you go with the nonsensical Super Bowl analogies, again. Moreover, since when did the terrorists ever give a hoot about how they are treated when captured? Further, since when did you lose faith in the concept of habeas (see my comment above) or our court’s ability to sift through or, God forbid even require, evidence of guilt? I fear, cj, that you are making a mountain out of a mole-hill that doesn’t even exist.
CJ
Okay, CF, let me put this in ways that your liberal mind can understand. I’ll try to keep this at the 2nd grade level. Since you can’t make the connection without sports analogies, I’ll just have to be blunt. Allow to rephrase:
I said: “Obama has sided with terrorists by giving them our game plans.”
I meant: “Obama has sided with terrorists by giving them our interrogation plans.”
Hope that clears things up for you. I know that must have been a difficult connection to make. You failed to answer my question about what other country gives away its interrogation methods. Surely an innocent oversight.
All terrorists, insurgents, enemy troops, and other captured individuals care about how they are going to be treated. If they didn’t, they wouldn’t be complaining at Gitmo! All combatants, legal or otherwise, try to prepare for possible capture. That’s why I subjected myself to SERE training. That’s why Al Qaeda actively trains against our interrogation methods. Surely this isn’t news to you!
As for the courts, I have full faith and confidence in the concept of habeas corpus to those in this country who fall within the confines of our Constitution. But, let me remind you of the people to whom that document applies: “WE THE PEOPLE OF THE UNITED STATES…secure the blessings of Liberty to ourselves and our posterity.” It doesn’t mention anywhere in here that this applies to illegal enemy combatants. The Constitution also makes law any treaties the United States signs into with other nations. Therefore, the Geneva Conventions become law, which DO NOT apply to unlawful enemy combatants. As a matter of FACT…let me say that again, FACT…it’s illegal to try enemy detainees in our courts. They are to be tried by military courts. Maybe you should read a little more and come back.
The mountain being made here is in the Executive Orders going against the same Geneva Conventions that EO is supposed proposes we uphold!! In other words, the EO contradicts itself.
MIckey
CF stated:”that you are making a mountain out of a mole-hill that doesn’t even exist.”
Since when is letting terrorist out of a prison a mole-hill. Or maybe some will vote for CF to have them come live with him. Then we will see what a mole-hill really is.
Critical Facts
“Since when is letting terrorist out of a prison a mole-hill.”
Geeze, Mickey, can you even read? No one, myself included, advocates letting terrorists out of prison.
CJ
Can you answer my inquiries now? See below.
Critical Facts
cj:
I’d be happy to answer your inquiries if there were any to answer – I read your comment below but see no questions.
CJ
I guess I only had one. The inquiry was above, but mentioned again below.
“You failed to answer my question about what other country gives away its interrogation methods.”
And I’ll add one here: Is it acceptable to let our enemies exactly how we’re going to get information from them?
Please forgive my snarky remarks. I had just finished “edumacating” Doug. That dude’s a true loony.
Critical Facts
I don’t know of any country that gives away their interrogation methods (or at least exact details of their critical ones), and no, I don’t think it acceptable to let our enemies know exactly how we are going to get information from them.
CJ
But yet, that’s exactly what Obama did last week.
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