Thursday, January 29, 2009

Guantanamo Bay - The Al Qaida Issue

Oh! What a tangled web we weave when first we practice to deceive. Who decided to take captives from a warfront and house them in another country? What was the purpose for housing those prisoners at Guantanamo? Those are the questions that were never asked of President Bush. I believe that in the hasty confusion to exact a punishment against those imprisoned at Guantanamo Bay the President, and all of his men, lost track of the big picture and were caught up in a quagmire of their own doings.

The Bush administration has maintained that these individuals are extremely dangerous and must be isolated in such a manner that they can never do us harm again. The Bush administration notes that previously released Guantanamo prisoners have gone back and joined the fight against American troops. They cite at least sixty-one incidents wherein prisoners that were released have become suicide bombers, have been recaptured, or have shown up on video tapes recruiting for the jihadist.

I believe that there is some truth to what is being reported by the troop commanders in Iraq and Afghanistan with regard to the return of released prisoners to combat, but I question if any of this would have been the case if these prisoners had been incarcerated in-country rather than at Guantanamo Bay. I wonder what would have been the outcome had we not been exposed at Al Ghraib? What if we had expeditiously carried out the military tribunals? Obviously the decisions were made by someone positioned to formulate a policy, but the policy, we are seeing now was very flawed.

Al Qaida uses Guantanamo as a badge of honor, a recruitment tool. Those having been there for any length of time are looked upon as having been in the den of the infidels and lived to tell the tale – an exaggerated tale, I am sure. But, why give the enemy additional ammunition to be used against you in the psychological warfare that is always associated with armed conflict. We have created a two-headed monster that will not die no matter what we do from this day forward.

Had the United States proceed with military tribunals against these individuals as originally stated, the matter would have been over… instead, it has drawn on with disastrous propaganda permeating everywhere. In defense of the President, I submit that he had every right to remove the prisoners from the warfront, incarcerate them at Guantanamo Bay, and send them to a military tribunal. The President’s rights can be reviewed from similar incidents, the first being the incarceration and military trial of Germans caught after they had entered the United States during WWII…

The Court first carefully traced the President's power to issue the July 2 order back to the Congressional "war powers" provided in Article I, section 8 of the Constitution, and the President's executive powers under Article II. It held that the Articles of War were an appropriate constitutional exercise of power by Congress, and fully provided for the trial of enemy spies by miltary tribunal. As a final step, the Court affirmed that the July 2 order was a valid implementation of the Articles of War.

The Court stressed that the procedure being followed was a well-accepted implementation of the universally accepted laws of war:
By universal agreement and practice the law of war draws a distinction 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.
According to the court, unlawful acts of war include "an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property". It noted that the Hague Convention, adopted by the United States in 1909, adopted the pre-existing distinction between lawful and unlawful belligerents, protecting only the former.

Notwithstanding this lawful position, the Bush administration delayed the execution of the Military Tribunals, creating a situation that is to be decided by another President who is either unaware of these statues, or simply does not want to entertain the matter further.

The other example involving the German prisoners of war is put forth in the article Ex Parte Quirin and it details how, with reason, the prisoners were denied Habeas Corpus…

The President, as President and Commander in Chief of the Army and Navy, by Order of July 2, 1942, appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission. On the same day, by Proclamation, the President declared that 'all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals'.

It is obvious that the United States was, and is, within its rights to expose the prisoners at Guantanamo Bay to military Tribunal. There is a choice… we can free these individuals and reap the havoc as a result of their being used to recruit others to Jihad, or we can just as easily commence the Tribunals and sentence them as would be the discretion of a Military Judge. 

There is another way if we free them; we must extract a solemn oath from them to never again pursue jihad against any government again – to be sworn to in the name of with Allah. No self-respecting Muslim will commit a violation of an oath sworn to in the name of Allah.

In a democracy, silence is not golden; it is condonance in the face of injustices; it is fear, where the thought of reprisal fosters control - Rodney A. Davis


  1. I will be interesting to see how Obama and any POTUS there after handles the all the messes that the Bush Administration has gotten this country into. It will take years to unravel and straighten out.