Ignorance Is Bliss, But For Who
Barack Obama gave a speech in San Antonio this past Sunday saying he wants Guantanamo Bay closed. He also stated that he wants to restore habeas corpus. Obama is a Harvard law school graduate, he knows what habeas corpus is and when it applies, but do the crowds he is pandering to understand the complexity concerning habeas corpus, enemy combatants and SCOTUS’ rulings on it? I doubt it.
In usual liberal fashion he wants to close Guantanamo Bay, but never addressed how. What would he do with the 180 some odd captives held there? Charge them to satisfy habeas corpus? Charge them with what? Not charge them and send them where? Try them in Federal criminal court? Try them in a military tribunal? Send them back so they can continue their fight against the U.S.? No mention of a plan, just close it.
This issue was addressed by SCOTUS in 1942. Here is part of the ruling:
Ex parte Quirin, 317 U.S. 1 (1942), is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States. Quirin has been cited as a precedent for the execution of any unlawful combatant against the United States.
This decision states:
“ …the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
Earlier this month a Federal appeals court ruled that the President cannot declare citizens in the United States as “enemy combatants” and have the military hold them indefinitely. The case was al-Marri v. Wright in the Fourth Circuit of the U.S. Court of Appeals. This is a chronic problem with the Bush administration. They assume they have he power to classify anyone however they wish.
The court ruling made two distinctions: lawful combatant and unlawful combatant. A lawful combatant has the classification of “prisoner of war” and all rights afforded by the Geneva Convention. The unlawful combatant gets the military tribunal. The Bush administration has abused it’s discretion in distinguishing between the two.
What is Barack Obama’s plan for discerning between the two classes of combatants at Guantanamo Bay? What if by definition there truly are unlawful enemy combatants there? Or on the battle field? If you capture someone you have to do something with them. Read them their Miranda rights and send them all back to the U.S. for trial? Supply them with court appointed attorneys? Send them where and do what with them?
What’s your plan Obama?
