1. I accept that I am under the control of a higher power (Muppet).

Solving Guantanamo

War is the continuation of politics by other means.

Guantanamo is a major political problem for the US that is damaging the position of the war on terror.

The remaining prisoners in Guantanamo have no useful intelligence, and many are innocent. There are also some who are guilty but who could never be convicted in any reasonably fair judicial process.

Releasing the innocent would worsen the political problem as they will run to the press complaining about torture, etc. - while others (mostly guilty) remain in Guantanamo.

Releasing the guilty to commit more terrorism would be a step back in the war on terror.

So we are stuck where we are, because there is no better option.

Or is there?

What if some short-term political pain could remove the running sore for good?

The courts have provided such an option.  They have ruled that the Guantanamo prisoners are beyond the reach of US law and US courts.

There is nothing legally to stop GWB ordering the remaining prisoners simply all be executed.

As he is coming to the end of this 2nd term, he need not fear any domestic political fall out.

Discuss.
Permalink  
March 9th, 2007 8:52am
If the Guantanamo prisoners are beyond US law, they are beyond the President's jurisdiction and beyond US forces' right to detain.
Permalink Send private email Flasher T 
March 9th, 2007 8:54am
Guantanamo isn't beyond US law -- it's still a territory or possession (I forget which) which just happens to be a major military base.
Permalink Send private email xampl 
March 9th, 2007 8:59am
I think it may be a possession not a territory.  It's definitely unincorporated.

And the insular cases around a hundred years ago, established most US constitutional provisions don't apply to unincorporated territories, possessions, etc.

http://en.wikipedia.org/wiki/Insular_Cases

From wikipedia: The Insular Cases are several U.S. Supreme Court cases decided early in the 20th century. The cases were in essence the court's response to a major issue of the United States presidential election, 1900 and the American Anti-Imperialist League, summarized by the phrase "Does the Constitution follow the flag?" Essentially, the Supreme Court said that full constitutional rights did not automatically extend to all areas under American control.


The administration definitely claims the Constitution does not apply to Guantanamo:

http://writ.news.findlaw.com/commentary/20020307_chander.html

And that argument seems, at least in part, accepted by the courts (which would be consistent with the insular cases):

http://thestar.com.my/news/story.asp?file=/2007/2/21/worldupdates/2007-02-21T001303Z_01_NOOTR_RTRJONC_0_-288517-1&sec=worldupdates
Permalink X 
March 9th, 2007 9:08am
1) IIRC, Guantanamo is Cuban territory leased to the US.
2) Guantanamo has to be subject to *some* legislation.
3) Guantanamo is a military base.
4) Military statute does not extend to long-term incarceration of enemy combatants, that's a civil matter.
Permalink Send private email Flasher T 
March 9th, 2007 9:18am
Supposedly they're not enemy combatants cause they don't wear uniform (or some such legal loophole).
Permalink Colm 
March 9th, 2007 9:29am
Huh? What are they held as, then?
Permalink Send private email Flasher T 
March 9th, 2007 9:30am
<Releasing the innocent would worsen the political problem as they will run to the press complaining about torture, etc. - while others (mostly guilty) remain in Guantanamo. >

This justifies keeping them locked up indefinitely? A PR image problem! Jeez.
Permalink el 
March 9th, 2007 9:40am
To be fair, it's slightly more than a PR problem.

Guantanamo is the best recruiting aid that the jihadists have.  Releasing some prisoners (who then come out and speak out about the torture, destroying Korans, etc.,), and retaining others probably would make into an even better recruiting aid.
Permalink X 
March 9th, 2007 9:53am
What if the main stockade were to accidentally be hit with a barrage of stray artillery shells?
Permalink Send private email JoC 
March 9th, 2007 9:55am
> 2) Guantanamo has to be subject to *some* legislation.

Yes, according to the insular cases, it is subject to whatever specific laws the US Congress chooses apply to it.

As far as I can see, the only potential limit on such laws, would be whether Congress exceeded the power granted to it by the Constitution.  (the prisoners themselves don't have Constitutional guarantees for the reasons below).


> 4) Military statute does not extend to long-term incarceration of enemy combatants, that's a civil matter.

The prisoners at Guantanamo are not US citizens, are not in incorporated US territory, didn't commit their alleged crimes in incorporated US territory,  and generally don't have the kinds of substantive contact with the US that would make them subject to US federal court jurisdiction.
Permalink X 
March 9th, 2007 9:58am
> 2) Guantanamo has to be subject to *some* legislation.

Yes, according to the insular cases, it is subject to whatever specific laws the US Congress chooses apply to it.

As far as I can see, the only potential limit on such laws, would be whether Congress exceeded the power granted to it by the Constitution.  (the prisoners themselves don't have Constitutional guarantees for the reasons below).


> 4) Military statute does not extend to long-term incarceration of enemy combatants, that's a civil matter.

The prisoners at Guantanamo are not US citizens, are not in incorporated US territory, didn't commit their alleged crimes in incorporated US territory,  and generally don't have the kinds of substantive contact with the US that would make them subject to US federal court jurisdiction.
Permalink X 
March 9th, 2007 9:58am
Would you say it is reasonable to expect that enough time has passed since 9/11 that anything pertaining to the reasons people are in Guantanamo has ceased to be sensitive information?

Publish their files. Charge those you have something on, under international rules of war, and release the others.

The problem right now is that the jihadist recruiters kind of have a point: it's still not very nice to blow shit up, but America is being a giant dick.
Permalink Send private email Flasher T 
March 9th, 2007 10:00am
"Yes, according to the insular cases, it is subject to whatever specific laws the US Congress chooses apply to it."

You're shitting me.
Permalink Send private email Flasher T 
March 9th, 2007 10:02am
> "Yes, according to the insular cases, it is subject to whatever specific laws the US Congress chooses apply to it."

The emphasis is __specific__.  The general body of US law does NOT apply.
Permalink X 
March 9th, 2007 10:03am
Uhm, we are basically talking military conquest here. Why would it be conducted under the guise of spreading the same rights and freedoms of America?

Oh...
Permalink Send private email JoC 
March 9th, 2007 10:04am
It still boggles my mind that "does the Bill of Rights apply" is ever even an issue. That it is an issue should be held up as an indictment against anyone who ever asks.

The Bill of Rights is not some problem that has to be worked around - it is an ideal that this nation is supposed to stand for. And a simple application of the Golden Rule says that the right thing to do is simply to presume it always applies to anyone the US deals with.

The whole "the Constitution doesn't apply" statement from anyone in elected or appointed office probably eats away at me more than anything else this joker and his subordinates have done.
Permalink Philo 
March 9th, 2007 10:23am
>Huh? What are they held as, then?

I don't think they're held as *anything*, actually. I don't know the legal specifics (Philo is probably the better person to ask), but I think they found some loophole where they're not defined as anything that US law or the geneva convention applies to.
Permalink Colm 
March 9th, 2007 10:32am
'enemy combatants' or something. Not POWs (despite the War on Terror) because that would imply Geneva Convention treatment. Not charged/indicted because that would require a day in court.

This type of slithering with definitions is what gives lawyers a bad name (yes there are good lawyers too).

If it wasn't Gitmo, I imagine Bush would put a prison in Antarctica or on the moon to avoid jurisdiction borders. This way at least the prison is in a nice tropical locale.

Personally I think if Castro cashed the checks the US sends him for the Gitmo lease (a nominal $5000/year), he would accept the contract and could claim jurisdiction over the base (Cuban land, Cuban laws). That would be the ultimate irony - US special ops interrogators being prosecuted in Cuban courts for what they did in Gitmo.
Permalink Send private email strawberry snowflake 
March 9th, 2007 10:43am
That would be truly beautiful.
Permalink Colm 
March 9th, 2007 10:54am
> The whole "the Constitution doesn't apply" statement from anyone in elected or appointed office probably eats away at me more than anything else this joker and his subordinates have done.

Technically "the Constitution doesn't apply" is simply a statement of fact.  It was the situation already for unincorporated possessions and territories even before GWB was President  (did you know that you could be thrown in jail for flying a Puerto Rican flag in Puerto Rico as recently as the 1950s - no 1st amendment there). GWB didn't change the status quo.

To make the constitution apply, one of the following would need to happen:

1. A Constitutional amendment to make it apply to unincorporated posessions and territories.
or
2. Supreme Court overturning the insular cases
or
3. Granting US citizenship to the Gitmo internees


GWB's "innovations", if you can call it that, are

1. deliberately designing a prison system in order to avoid having the constitution applying.

and

2. the theory that the constitution may not apply within the incorporated US for certain citizens accused of treasonous activities.
Permalink X 
March 9th, 2007 11:07am
> Personally I think if Castro cashed the checks the US sends him for the Gitmo lease (a nominal $5000/year), he would accept the contract and could claim jurisdiction over the base (Cuban land, Cuban laws).

The Cuban-American Treaty specifies says the Guantanamo Base is subject to US laws.

If Cuba accepts the treaty, then Cuban law can not apply.

Cuba however claims the treaty is void under 1969 Vienna Convention on Treaties (which voids treaties which were imposed under the threat of force).

Additionally, there is an argument that even if not void, the treaty is cancelled because the US has violated the treaties terms in various ways.

If the treaty is void or cancelled, in that case, Cuban law might apply.
Permalink X 
March 9th, 2007 11:13am
"To make the constitution apply"

...all the President has to do is sign an executive order that states that all agents of the US government shall grant any person they deal with the presumed protections of the Bill of Rights.

Sure, a noncitizen may not be able to file a claim in US Court for violation of Due Process, but let's start by at least trying. My point was that it's when the executive branch goes to Court to beg and plead that the Bill of Rights does NOT apply that I get ill.

Anyway, the proper thing to do would be for Congress to pass a law placing Bill of Rights restrictions on US actors. (i.e. in addition to being the rights of citizens, the Bill of Rights also acts to restrict the actions of the US government). Then the whole problem goes away.
Permalink Philo 
March 9th, 2007 11:15am
Nice Catch-22 though - If it's not valid, it's under Cuban law, and people can be prosecuted under Cuban law.  If it is valid, US law should apply...so does that include the Constitution, as it is the basis for US law?
Permalink Send private email Aaron F Stanton 
March 9th, 2007 11:16am
> If it is valid, US law should apply...so does that include the Constitution, as it is the basis for US law?

No it doesn't include the Constitution.

It is well settled that the Constitution doesn't follow the flag into unincorporated areas.

That's why the government was able to run American Samoa, Puerto Rico, Phillippines, etc., as colonies.
Permalink X 
March 9th, 2007 11:20am
> ...all the President has to do is sign an executive order that states that all agents of the US government shall grant any person they deal with the presumed protections of the Bill of Rights.

Yes he could do that.

But no President has, despite having the option since c.1898 when the question first arose.
Permalink X 
March 9th, 2007 11:21am
Too bad.
Permalink Send private email Aaron F Stanton 
March 9th, 2007 11:22am
The problem is, the imprisonment of the people at Gitmo (without trial and constitutional protections for the few that are US citizens) is based on a technicality of law, and not any moral principle.
Permalink Send private email xampl 
March 9th, 2007 4:33pm
The law of unintended consequences makes Gitmo a serious issue for the Man of Steel aka Deputy Sheriff of the Pacific aka Prime Minister of Australia in his last election.
Permalink trollop 
March 9th, 2007 9:32pm

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