{"id":36877,"date":"2013-06-03T17:35:25","date_gmt":"2013-06-03T23:35:25","guid":{"rendered":"http:\/\/hill-kleerup.org\/blog\/2013\/06\/03\/the-tangled-shame-of-gitmo.html"},"modified":"2013-06-04T19:14:31","modified_gmt":"2013-06-05T01:14:31","slug":"the-tangled-shame-of-gitmo","status":"publish","type":"post","link":"https:\/\/hill-kleerup.org\/blog\/2013\/06\/03\/the-tangled-shame-of-gitmo.html","title":{"rendered":"The Tangled Shame of Gitmo"},"content":{"rendered":"
An analysis of the legal and political bit and bobs around America's appalling prison camp. \u00a0And whomever you blame for its construction, its filling, its continued existence (and there are many to blame), the bottom line is that it is driven by a truly shameful broad support by the American people. \u00a0Only by changing that<\/i> will the prison camp at Gitmo be closed.<\/p>\n

Reshared post from +Andreas Schou<\/a><\/strong><\/p>\n

A few questions and answers about Guantanamo:<\/p>\n

Don't the prisoners at Guantanamo belong there?<\/b><\/p>\n

As it stands, about 92% of the detainees at Guantanamo are detained for reasons unrelated to al-Qaida membership. Many of them are either the unfortunate victims of bad, torture-driven intelligence or are genuine militants who were not, at any point, attacking the United States. Not that there's ever been any formal process to determine with any certainty who they are and why they ended up there.<\/p>\n

There is a plausible argument for continued detention of the remaining 8%, but I am basically not going to address that here. Suffice it to say that the vast majority of the Guantanamo detainees should not be there.<\/p>\n

Does Obama want to end Guantanamo?<\/b><\/p>\n

That question has several interpretations. I think the best answer is "yes, with caveats." The first caveat, of course, is that Obama seems unwilling to wager his presidency on closing Guantanamo. The second caveat is that his closure plan would not satisfy the majority of people seeking closure.\u00a0<\/p>\n

Originally, Obama had intended to move the detainees to the continental United States. Without further information, this appears to do very little to change their status. However, under Boumediene<\/i>, there is a substantive difference in prisoners' habeas rights, depending on whether they are being kept in de facto<\/i> or de jure<\/i> American territory. Overseas detainees receive strictly curtailed (and somewhat unclear) habeas rights; detainees kept on American soil, however, may receive full habeas review of their cases. This would permit (indeed, require) American courts to hear petitions for release by Guantanamo detainees.<\/p>\n

However, this is not a trial.<\/p>\n

Habeas review is actually relatively narrow. However, for those prisoners initially detained on false pretenses (i.e., most of them), even narrow habeas review would be sufficient to secure their release. So, yes, what Obama had originally intended to do — before he was blocked — would be a substantial improvement in current legal conditions for a vast majority of the detainees. It would not, however, fully satisfy a commitment to the rule of law.<\/p>\n

Couldn't he have just promised to close Guantanamo to be elected?<\/b><\/p>\n

This is almost certainly not true.<\/p>\n

Horrifyingly, Guantanamo is one of the US government's most popular policies. 70% of Americans support its continued operation. Compare that to the 61% of Americans who think that Medicare is worth the money, or the 76% who believe that we should provide health care for the elderly.<\/p>\n

The crosstabs even indicate that closing Guantanamo isn't a clear winner among Democrats.\u00a0<\/p>\n

Can't he just release them to other countries by executive order?<\/b><\/p>\n

Mostly, no.\u00a0<\/p>\n

Since the beginning of the Obama administration, about a third of the remaining prisoners have been released to foreign countries. Most of those prisoners appear not to presently be in third-country \u00a0detention. However, since 2009, a series of appropriations bills — presently, the NDAA of 2013 — impose a series of conditions on the executive which disallow the President from releasing prisoners when certain conditions are not true.<\/p>\n

You may have heard that these provisions are waivable, and therefore Obama is at fault . This is partially true, but only two of the five criteria are waivable, and Yemen (the home country of most of the detainees) does not satisfy two of the non-waivable criteria.<\/p>\n

Didn't Obama sign the NDAA? Isn't this really his fault?<\/b><\/p>\n

Sort of.\u00a0<\/p>\n

If you're not familiar with a relatively obscure part of the Constitution, and the regular process of appropriations, then Obama's response to the 2011 and 2013 NDAAs might have seemed like a way for Obama to ask to be prohibited from fulfilling his campaign promise to close Guantanamo.<\/p>\n

But here's the rub:<\/p>\n

Article, I, Section 8 Constitution prohibits the United States from maintaining a standing army for longer than two years. The Founders \u00a0had initially anticipated that citizen militias would fulfill most American military needs. However, by World War I, state militias had mostly fallen by the wayside, and Congress began periodically reauthorizing a portion of standing military forces every year. Initially, this was not very large, but by the beginning of the Cold War, it had become routine for Congress to reauthorize the same standing army every two years, violating the spirit (but not the letter) of the law.<\/p>\n

The NDAA and its predecessors — there's a bill of the same or similar name every two years — not only govern the executive's conduct in war, they also appropriate all the money which keeps the military running. As Obama unequivocally supports continued military operations in Afghanistan (and would probably not support shutting them down overnight even if he did not), he was left with a Hobson's Choice when presented with two consecutive NDAAs which limited his options in Guantanamo:<\/p>\n

Is there a legal workaround for this?<\/b><\/p>\n

Maybe, but it's risky.<\/p>\n

Obama could attempt to exercise raw executive power in order to release the prisoners. If, as Eric Posner suggests, Obama were to declare an end to the state of conflict (not war) created by the 2001 AUMF, then that would likely suspend the authority to keep Guantanamo open. But there are serious questions as to whether he would actually be successful if he tried unilaterally: if in session, Congress could immediately pass a new AUMF, then sue to prevent the release of the prisoners.<\/p>\n

This might cause a constitutional crisis, and considering Guantanamo's popularity, it would almost certainly cause a substantial scandal. It would also require Obama to declare what would appear to be a unilateral ceasefire with al-Qaida.\u00a0<\/p>\n

Should he do it anyway?<\/b><\/p>\n

Yes.\u00a0<\/p>\n

At this point, it doesn't matter how it gets done: it will not be long before Guantanamo is irrevocable.\u00a0<\/p>\n

Right now, mostly-innocent (or not-provably-guilty) people are starving themselves to death in order to seek attention. This has been mostly back-page news in the United States. Right now, they're being force-fed to save their lives, a procedure which is inhumane, degrading, and strips them of whatever little bodily autonomy they have left.\u00a0<\/p>\n

At some point, they will succeed at killing themselves, and it will be our fault. That includes the American people, who have made serial demands that this continue. Understanding how Guantanamo remains open<\/i> is important, but putting pressure on elected officials to close it as expeditiously as possible is far more important.\u00a0<\/p>\n

So call. Write. Explain this to your less-well-informed pickets. Send letters. Chain yourself to things and shout slogans if you have to. \u00a0This needs to end soon, or it will never end.<\/p><\/blockquote>\n<\/div>\n

View this post on Google+<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

An analysis of the legal and political bit and bobs around America's appalling prison camp. \u00a0And whomever you blame for its construction, its filling, its continued existence (and there are many to blame), the bottom line is that it is driven by a truly shameful broad support by the American people. \u00a0Only by changing that … Continue reading “The Tangled Shame of Gitmo”<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","_seopress_robots_follow":"","_seopress_robots_imageindex":"","_seopress_robots_snippet":"","_seopress_robots_primary_cat":"","_seopress_robots_breadcrumbs":"","_seopress_robots_freeze_modified_date":"","_seopress_robots_custom_modified_date":"","_seopress_robots_canonical":"","_seopress_social_fb_title":"","_seopress_social_fb_desc":"","_seopress_social_fb_img":"","_seopress_social_fb_img_attachment_id":0,"_seopress_social_fb_img_width":0,"_seopress_social_fb_img_height":0,"_seopress_social_twitter_title":"","_seopress_social_twitter_desc":"","_seopress_social_twitter_img":"","_seopress_social_twitter_img_attachment_id":0,"_seopress_social_twitter_img_width":0,"_seopress_social_twitter_img_height":0,"_seopress_redirections_value":"","_seopress_redirections_enabled":"","_seopress_redirections_enabled_regex":"","_seopress_redirections_logged_status":"","_seopress_redirections_param":"","_seopress_redirections_type":0,"_seopress_analysis_target_kw":"","_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[106,17],"tags":[],"class_list":["post-36877","post","type-post","status-publish","format-standard","hentry","category-plusposts","category-homeland-security"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack-related-posts":[{"id":134655,"url":"https:\/\/hill-kleerup.org\/blog\/2017\/09\/11\/never-happened-never-will-happen-9-11-trials-gitmo.html","url_meta":{"origin":36877,"position":0},"title":"The never-happened, never-will-happen 9-11 trials at Gitmo","author":"***Dave","date":"Mon 11-Sep-17 8:18pm","format":false,"excerpt":"There are a number of men at the US military prison in Guantanamo Bay who are there for their alleged roles in the 9-11 attacks. 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