Here's an except from an AP article I spotted on Yahoo! News.
"It's unlikely the detention facility will be closed anytime soon. In an interview on ABC's This Week last weekend, Obama said it would be 'a challenge' to close it even within the first 100 days of his administration.
'But I don't want to be ambiguous about this,' he said. 'We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our constitution.'"
The procedures for closing an extra-territorial detention facility for foreign nationals are going to "abide by our Constitution". What exactly does our Constitution say about extra-territorial detention facilities? Or about foreign nationals? PREAMBLE"We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..."
Establish justice--that would mean trials, assuming for a moment that we could even sort out who has jurisdiction.
Ensure domestic tranquility--I'd interpret that to mean we can't let them stay here. Well, maybe the 17 Chinese dissidents.
Provide for the common defence--I pretty sketch on how letting some of these guys go would provide for the common defence. Granted there are guys there who don't pose any threat, who determines who they are. What do you with the dangerous ones if you close Gitmo? I guess see #1.
Promote the general welfare--I'm pretty sure that what ever the cost of keeping Khalid Sheikh Mohammed
in a hole is, not keeping him there is worse for the general welfare. While I'm sure the things he admits to constitute capital crimes and as eager as I am to see him disabused of the notion they earned him a get out of hell free card, executing him only serves his goals. Let him rot in a prison like the common criminal he is.
Secure the blessings of Liberty for ourselves and our posterity--the Founding Fathers didn't give a rat's posterior for anybody else's liberty, they are in no way entitled to due process.ARTICLE I, SECTION 8
"...To constitute Tribunals inferior to the Supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...""...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Well, there you go, he can pin it all on Congress.ARTICLE II, SECTION 1
"...No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President..."
None of these guys is going to take Obama's job. Hopefully you had that much figured out, but I just want to be thorough.SECTION 2"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment...."
Or, he can just let them go. Don't think that would do wonders for his popularity.ARTICLE III, SECTION 2
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
There's a lot of wriggle room in this one. Are the detainees crimes covered by a Treaty? If so, then it seems fairly clear cut that are entitled to a jury trial in a place determined by Congress and the right to appeal to the Supreme Court. If not, the section becomes irrelevant.AMENDMENTS V, VI, VIII, and XIV
are the ones dealing with judicial issues--due process, cruel and unusual punishment, etc. I would contend that these apply only to citizens and legal residents of the United States, though I will concede the point is open to debate. AMENDMENT XI
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commence or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
If any of these guys want to sue a State, the Federal courts don't have jurisdiction. Again, being thorough. I could hardly leave it out since this is the only
place the Constitution directly mentions foreign citizens and it's noteworthy that the Authors felt it necessary to mention the case applies equally to Americans and foreigners.
So, Obama procedures are going to abide by the Constitution--which our Supreme Court has shown leaves plenty of room for interpretation. He doesn't want to be ambiguous, so he won't tell you it could go either way. He doesn't say the procedures will adhere to the spirit of the Constitution. He doesn't say they WILL get due process. He said he's going to close Gitmo and he's not going to break his oath of office to do it. He's taking a cheap (and I feel goundless) shot at the out going administration while playing to his worldwide fan-club.
Tags: constitution, guantanamo bay, obama
Current Mood: Unambiguous