Guantanamo Bay was a political rallying cry for The Party for years. Despite their closed door support for the outgoing administration's plan and actions against terrorism, they found it politically expedient to embrace the far left's propaganda against anything #43 endorsed.
The Party is now left with the difficulties of reconciling their Support of National Interests in secret while publically railing against the same measures. While they were able to allow their political opponents to take the heat for unpopular means necessary for the safety of the Nation, they now find themselves in the awkward position of having a political opponent too weak to blame for anything. The Party has absolute power and now must identify a way to change course publically to the course they railed against publically, an argument that lifted them to power.
I would like to thank Alex over at The Boston Review for pointing me towards an ongoing debate in their magazine on how they can now justify holding open the doors to Camp X-Ray and Guantanamo Bay, whether for our Guards or to put terrorists back on the battlefield. As I point out in comments there, the biggest problem with the debate is that it focuses on the wrong issues. The debate should be unnecessary and it would be, if the participants could focus on the actual issues and the legal basis for them.
David Cole opens the debate with the statement that "preventive detention" was used in
WWII and hence should be allowed in the Global War on Terror. It's a standard common law argument. (Common Law is the method of the United States whereby previous cases are used to argue for fairness in current and future cases.) He aptly points out that members of both parties have stated a desire to shut down the facility, without noting that their stated motivations are different. He correctly argues for detention of combatants for the duration of hostilities, but bases his argument on the wrong theory: i.e. that it was used in WWII and hence common law (under the Constitution) allows it to be implemented in the Current Conflict.
It is important to note that combatants captured on the battlefield do not constitute "preventive detention," as would be the case of rounding up and detaining all Muslims or Arabs in the United States. While one has a first amendment right, if a citizen of the United States, to state that the President of the United States is wrong or even criminal, they do not have a right to call for his assassination or for the onset of hostilities against the United States.
While a person has a right to call for and institute a political party to change US policy and law, they do not have a right to call for and organize a military organization to do the same thing. While a US citizen has a 2nd Amendment right to own and bear arms, they do not have a right to use those arms to kill politicians, troops, or citizens that advocate against their rights.
He is struggling to reconcile the accepted argument against detention of combatants without trial of "Un-Constitutionality" with the reality that they cannot be released back into the populace to return to their murderous ways. His logic is strong, but it is based on a weak premise that is unlikely to be upheld in court. The Bill of Rights cannot be subverted for sake of security, nor need they be, no matter how logically it can be argued they should be. But most importantly, there is no need to subvert them. US Law simply does not apply to terrorists detained at Gitmo.
And that is where the debate went awry, both originally and in the political platforms and propaganda that ensued. It is unfortunate that the outgoing party and administration allowed the debate to be led astray and it is near criminal that the incoming party of absolute power decided to do so. Now The Party finds itself a victim of its own success and the means of attaining it. The Party has long philosophized and has a history of implementing policy recognizing terrorists as solely criminal.
The entire argument of Constitutionality of holding combatants without trial rests on the criminal only approach to terrorism. It does not work. It is proven to fail. Nor does it apply. It is a reactive measure that fails to recognize the depth and scope of the threat, means and goals of our enemies. It was the approach used by the Clinton Administration and resulted in a reversal of the trend downward in terrorist incidents to a spike upward in terrorist attacks, including in attacks on US Soil as well as US Interests abroad.
We are at war, whether politicians and people admit it or not, whether they contribute to the National Defense or actively work to subvert it. OBL and AQ declared war on us in 1998. We ignored them until 9/11/2001. When we could no longer ignore them, we declared war on them. Despite the fact that we have denied them a Nation from which to claim official actions, they continue to attempt to kill Americans, to conduct warfare, and to establish the airs of legitimate government. Wars are not always fought between recognized governments, nor is that a requirement in the definition of war.
As we are at war, the rules and laws of the Geneva Conventions apply, not the US Constitution, in regards to the legalities of detention of combatants. When a man picks up a weapon and actively attempts to kill a US Soldier during a time of declared war as an agent of the belligerent organization, they have not necessarily committed a crime. At that point, they are a combatant and can legally be killed for their actions, up until that point that they surrender whether due to physical incapacitation or desire to remain amongst the living overrides their desire to take others from it.
Upon surrender, though they are not necessarily criminals, the Geneva Conventions properly allows them to be held until such time that they are deemed no longer likely to again attempt to kill. It does not require a trial, because they are not criminals solely based on their actions against their armed enemy. The Conventions give them certain rights and provides rules for how they are to be treated.
It also provides the framework for trials and detention past the cessation of hostilities for those that are war criminals, i.e. those that have broken its rules and laws. War Crimes can be prosecuted, but if the evidence of a war crime is found lacking, it does not mean that the combatant has lost that status as an Enemy Prisoner of War. It does not mean that he is to be released back onto the battlefield to return to actively killing. It simply means that he cannot be held past the end of hostilities, as can those convicted of war crimes.
Meanwhile Eric Posner argues instead about the implications of technology in warfare. In making this argument he fails to recognize that the technology used is millenia old, a sharp piece of metal, i.e. a knife, one of the oldest types of weapons in warfare. He follows this with the argument that US Citizens must trade Safety for Security. This case is made again, because the whole debate is focused on Constitutionality rather than the applicable International Law: The Geneva Conventions, which in many cases would actually allow for the execution of terrorists as spies and illegal combatants but would be more aptly applied to holding them on charges of War Crimes should this Conflict be resolved during their lifetimes.
But once again, even if they are found "not guilty" of war crimes, they would remain combatants and legally detained until the end of hostilities, even if that is not until 2112.
Another central allusion to the argument of closing Guantanamo Bay is that somehow a piece of ground or the inanimate objects of a facility are somehow guilty of crimes. It is such an insane argument that it is only alluded to and never stated. Even if one were to allege, indict, and prove that anything illegal had occured at Gitmo, neither the facility nor the land could be found guilty. If there were convictions, it would be of the organization that ran the facility and the people that conducted the actions.
Now, we are talking about US Citizens who do have the protections of the Bill of Rights. Now we are talking about Troops, who are deemed innocent until proven guilty. Sadly, The Party and the propaganda organizations we call journalists turned a central tenet of the Bill of Rights on its head, where it aptly applied. They convicted Our Military and Our Troops in the court of public opinion and it became necessary to prove innocence rather than guilt. Fortunately, Our Troops were able to prove their innocence and have done so, despite the fact that they should not have been forced to do so.
Sadly, the organizations, political and "journalistic" that slandered, libeled, and defamed the character of Our Troops widely and loudly failed to publically retract those reports when they realized their error. Instead they have silently continued to allow the misperceptions that atrocities have been committed against terroristic murderers and continued to argue for Constitutional protections of the most atrocious animals on this planet while denying those that protect Our Constitution the rights afforded them by it.
But if one were to find wrongdoing at Gitmo, closing Gitmo would have only a negative effect without ending the potential for abuses. That piece of earth and the buildings on it did nothing wrong. If there were a crime committed there, the person that committed it and the organization if institutional abuse was found, would need stand trial, to prove guilt. And if institutional, it would then be necessary to assess if it warrants re-constitution, replacement, or new rules. The most likely best course of action in such a case (which has not occurred) would of course be to replace the leadership and implement rules to prevent the future possibility of such allegations.
The most likely reality is that there is no institutional illegality or abuse but that there are likely to have been a few isolated indiscretions and possibly even a few criminal acts, but given the professionality of Our Troops, and the seriousness which their leaders take the rule of law, I expect any such issues have already been identified and corrected, upon realization and investigation of them.
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