Uncovering Guantanamo Bay

Shortly after 9-11, when the US invaded Afghanistan in 2001 to find Osama Bin Laden and overthrow the Taliban regime, US troops found themselves with approximately 500 enemy combatants that they didn't know what to do with (the number has since grown to over 700 as of 2006).

President Bush received advice, from then Attorney General John Ashcroft and then White House legal counsel Alberto Gonzalez (now the Attorney General), to send the prisoners from Afghanistan to Guantanamo Bay (sometimes called Gitmo) in Cuba, which is a large military base that the US leases from Cuba (interestingly, Cuban president Fidel Castro has refused to cash all but the very first rent check in protest).

Why Gitmo? The Bush administration, for reasons that will be explained later, felt that the prisoners were not protected under the Geneva Convention. Since Cuba is not US soil, Bush believed that Federal courts did not have jurisdiction to get in the way of holding the prisoners without trial. This belief, however, was not uniformly shared outside of the Bush administration.

Soon upon transfer to Gitmo, relatives and friends of prisoners engaged lawyers and filed lawsuits all over the country on behalf of the detainees, to the point where then Chief Justice William Rendquist ordered all lawsuits to be consolidated and sent to a judge in Washington D.C.

Some of the cases were about habeas corpus, which is the right of a prisoner to be brought to court to determine guilt. Habeas corpus is guaranteed to all persons (not just citizens) in the US under the Constitution and cannot be suspended unless in time of war. Since Congress did not declare war, the Bush administration is clearly in the wrong, right? Wrong.

On September 14, 2001, by a vote of 98-0 (with two senators not voting), Congress passed the Joint Resolution 23, the "Authorization for Use of Military Force." This resolution had the following text:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It is this bill that has led to the holding of prisoners in Guantanamo Bay, the suspension of habeas corpus, and everything else that opponents of this war cry out against. But what critics of the Bush administration forget as they demand impeachment of the President, is that every Republican, Democrat, and Independent agreed to give Bush this power. John Kerry voted for it. John Edwards voted for it. Ted Kennedy voted for it. Hillary Clinton voted for it. So who is to blame?

Using this authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism", which contains the following text:

(f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.

Many legal and constitutional scholars contend that these provisions are in direct opposition to habeas corpus and the US Bill of Rights. This belief was challenged in the Jose Padilla case. But on September 9, 2005, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that President Bush does indeed have the authority to detain "enemy combatants" without charges, citing the president's constitutional powers as commander in chief and the congressional resolution authorizing the president to use military force against the perpetrators of the September 11 attacks.

Moving forward in our story, one of the cases that was sent to Washington D.C. for consolidation made it to the Supreme Court, which said 8-1 that the lower Federal courts do have jurisdiction over the prisoners at Gitmo. But what difference does it make if Gitmo falls under US jurisdiction if they aren't protected by the Geneva Convention or habeas corpus, or if the Federal Courts recognize that Bush has the power, given by Congress, to deny habeas corpus?

People on the Bush side argue that the Geneva convention does not apply, as we are not talking about civic law. They feel that a different legal framework applies when at war. The Law of Armed Conflict (LOAC) says that you may detain someone without charge until the end of the conflict, however long that may be. LOAC applies to the conduct of military operations even when war has not been declared and when only one party is a signatory to the Geneva Conventions. This applies to the enemy combatants at Gitmo, as they didn't wear uniforms nor represent a specific country that we had a treaty with. In addition, they have valuable intelligence that the US must extract.

Critics of the Bush administration challenge those believes in multiple ways:

1) The Geneva Convention has a specific article referring to prisoners captured without uniforms, and it states that they are due the same protection as those without uniforms. This clause was put in specifically because American soldiers took uniforms off to infiltrate enemy lines during WWII, and US special ops forces today don't wear uniforms, and the US wanted some protection for them if captured (fyi.. it is against international law for soldiers not to wear uniforms, even though every country does it.) .

2) To hold someone until the end of a conflict, when the War on Terror could last forever like the War on Drugs, likely was not the intent of the authors of the Geneva Conventions, so how can that be the rule you go by to determine when the prisoners at Gitmo can be freed? In addition, there is no government to surrender to the US for the War on Terror, so who will decide when it is over?

3) Is this how we would want our troops treated if they were captured? Not a legal reason, but a practical one.

4) What if the government has screwed up and has innocent people detained? According to a report based on data supplied by the Defense Department, only 5% of the detainees were captured by US forces; 86% of the prisoners were handed over by either Pakistan or the Northern Alliance, at a time when the US was offering large bounties for the capture of suspected enemies. In other words, most of the prisoners were brought in by local bounty-hunters rather than as the result any American investigation or collection of intelligence. This, of course, does not mean that those prisoners are not guilty of crimes against the United States, but it does seem to important to validate that the right people have been caught.

5) How valuable could evidence be from a prisoner who has been held for four years in a foreign country with no contact with family, a lawyer, or even the Red Cross possibly have? Anything they knew certainly has no value today.

Is the Bush administration's policy in Guantanamo Bay against what the Founding Fathers intended when they created the Constitution? Yes. Is the policy directly in conflict with the Geneva Convention, the US Constitution, and the Bill of Rights? Without doubt. But is the Bush administration breaking the law by holding enemy combatants and not giving them a trial to determine their guilt or innocence? No. Is he guilty of impeachable offenses? No.

Unfortunately, we have short memories. Most Americans who despise Bush's policy in Gitmo believe that their side would have handled it differently, when the fact is their leaders authorized Bush to do this without one objection. Meanwhile, the hypocritical political leaders who enabled this mess continue to hit the cable news shows criticizing Bush, as if no one could have seen this coming.

It is likely that the next President and appointed Attorney General will reverse the Presidential Order and require the government to present its cases against the prisoners at Guantanamo Bay, and if no evidence found, the prisoners will at that point be freed.

When this happens, most of the prisoners will have been held in Gitmo for over seven years, so let's hope they are guilty.