Constitutional crisis

2004.04.23 — Government | War | by Derek Jensen

The wars in Afghanistan and Iraq have touched off a constitutional crisis in Washington unseen since... well, since George W Bush's last constitutional crisis. The White House has taken the firm position that enemy combatants captured in battle in a foreign land are its business and nobody else's. Many of them haven't had any legal evaluation since they were interred at Camp X-Ray two years ago. They get no legal rights, no lawyer, no hearing, no legal recourse at all.

Now, it's tempting to think that these guys ought to just rot in a dank cell (actually, a blockhouse barracks) forever, but take a moment to consider that nobody but the US military commanders who captured them have ever even tried to decide if they really are enemy combatants.

After all, these aren't Wermacht soldiers in gray coats and jackboots. They had no uniforms, no rank, no identification. Some of them could easily have been ordinary citizens at the wrong place at the wrong time. Even if they were carrying weapons, some may merely have armed themselves against their own lawless countrymen or, worse, may have been fighting on our side and became sort of "friendly fire" prisoners, taken captive by US troops who confused them with the enemy. Many were not even captured by Americans; they were captured by Afghan fighters who turned them in for a bounty.

The White House wants us to trust that they have it all figured out. And it wants us to trust that we don't need the nosy Supreme Court horning in on decisions about what to do with enemy soldiers. After all, they say, POWs are often kept for years during wars, right up until a peace treaty is signed.

Actually, the White House hasn't even declared them to be prisoners of war. Maybe they resisted arrest without violence.

One difference here, of course, is that the wars are already over. We destroyed the enemy leaders, captured their cities, and have begun rebuilding their countries and creating new governments. At what point do we send their men back? There isn't anyone to sign a treaty with or to conduct a prisoner exchange. Except for a couple of hotspots, we are in charge.

Moreover, we aren't holding the soldiers on their own soil, where they would eventually be subject to their own new government's laws... whenever that happens. And we aren't holding them in some third country, where they would be subject to the host country's laws. Instead, they are held in the strange limbo of Camp X-Ray at "Gitmo," Guantanamo Naval Base in Cuba, an American military base in an unfriendly country. The White House says that, there, they are under no court's jurisdiction at all, no law but military law, as if they were still on the battlefield.

To do this, the White House is pretending that Gitmo is part of Cuba and therefore not subject to American law. But imagine if the Cubans thought that. Can you imagine what would happen if Cuban military officers showed up at the gate, asking to hang out at the officers club? Or if Castro decided he wanted to take over the base altogether? Or if Castro decided he wanted to let all the prisoners go? Then the White House would be declaring it to be sovereign American soil just like an embassy or like Hong Kong was before Britain returned it to China.

No, Guantanamo is American as apple pie and subject to American laws and American courts. It hardly matters tho, since the Supreme Court can rule on cases that involve the president no matter where his orders are being carried out. After all, what if George W Bush decided that the prisoners were all guilty of capital crimes and should be executed? Would there be no court with jurisdiction over him?

Apparently President Bush thinks that about the Jose Padilla case (Pädillä) and Yaser Hambi. Padilla is an American citizen, arrested on American soil, being held by the military as an "enemy combatant," without legal recourse. The president doesn't think that this is unconstitutional.

It is only the supreme arrogance of the Bush administration that allows them even to entertain the idea that they should be allowed to hold "enemy combatants" without legal review for as long as they want and treat them however they want.

I'm not suggesting that the POWs deserve full legal rights of US citizens in American courts (altho Padilla does). But they do deserve lawyers, independent courts not run by the military, and some kind of due process that ensures that they will be returned to their homelands as soon as those countries are stable and have robust courts of their own to deal with them further if necessary.

But to hold them indefinitely, without legal counsel or recourse is un-American, undemocratic, and unwholesome. Aren't those the things were fighting?

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