Green Room

Close “Gitmo”…then what? The Law and Public Opinion. UPDATE: Obama Administration to try another Detainee in US federal court.

posted at 11:33 am on July 24, 2009 by

With a lot of fanfare, President Obama signed an Executive Order on his first day in Office to close the detention facilities at the Guantanamo Bay Naval Station.  [Full text can be found here.]

Another case of playing to public opinion instead of heeding the rule of law?

One can easily write a tome as to the assumptions contained within that Executive Order and the mangling  of terminology from Geneva and mixing Prisoner of War status with that of armed bandits, brigands, saboteurs and terrorists, but for now, I’ll refrain.

Now, we hear the latest idea from the Obama Administration…let’s move them to SuperMax, just south of Fort Carson.   That’ll solve the problem.

Or will it?

Sen. Jim Inhofe (R-Okla.), a Senior Member of the Senate Armed Services Committee, sponsored an amendment to the National Defense Authorization Act for fiscal year 2010 which would have prohibited the transfer of detainees from Naval Station Guantanamo Bay, Cuba to any facility in the United States.  The Democrat-controlled Congress blocked Inhofe’s amendment.

But, why is an amendment to a defense bill or any bill even necessary?  Amid all the chatter and noise over the past eight years, and all sorts of pundits making suggestions about Gitmo and the alleged illegality of Gitmo…and the call to bring the detainees to US courts for adjudication…seems that a proper interpretation of law, and the Constitution, by the US Supreme Court nearly 60 years ago has already addressed the problem…in detail.

Yet, ask just about any pundit, or even international law attorney, let alone members of Congress or even the present White House and most will glaze over if you mention Johnson v. Eisentrager.  Most have never heard of it.  Most of the chattering masses certainly not only never heard of it they have no idea at all what it establishes and prevents.

A summary of Johnson v. Eisentrager can be found here.

This seemingly obscure Supreme Court ruling, addressed in clear language, is  why Guantanamo Bay was chosen by the Bush Administration as a facility to house non-state enemy combatants picked up on battlefields across the globe as we went to war against Islamist jihadi terrorist groups…specifically al-Qaeda.

In its ruling, per Johnson v. Eisentrager, the US Supreme Court held:

A nonresident enemy alien has no access to our courts in wartime.

The USSC stated, in its ruling, ” Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.”

Further, “In extending certain constitutional protections to resident aliens, this Court has been careful to point out that it was the aliens’ presence within its territorial jurisdiction that gave the Judiciary power to act.

And, “Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security.

(The Court noted, “A resident enemy alien is constitutionally subject to summary arrest, internment, and deportation whenever a “declared war” exists. Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and whether he is an alien enemy. Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment.

Lastly, “A nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts.”

And applicable to the current situation, and something that simply must be broadcast and highlighted,

“Nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.”

And buried within the Supreme Court ruling, It is not the function of the Judiciary to entertain private litigation — even by a citizen — which challenges the legality, wisdom, or propriety of the Commander in Chief in sending our armed forces abroad or to any particular region.”

It should be noted, and emphasized, that no “Gitmo” detainee was arrested on US soil for terrorist acts committed on US soil.  Those jihadis who committed terrorist acts on US soil or were found guilty of terrorism or support for terrorism within the United States are held in US federal prisons or US military brigs, and are given full judicial rights as would any American citizen or US person apprehended for crimes within the United States.

Now…let’s talk about this idea of sending Gitmo detainees to Supermax. [The United States Penitentiary Administrative Maximum Facility (AMX), Florence, Colorado.]

In the world of criminal prosecution and defense of those accused, there is a long standing maxim, nullum crimen sine lege, nulla poena sine lege. (“no crime without law, no punishment without law”)

Under what law will these detainees be placed in SuperMax?   What laws of the United States have they violated?  If they have violated no US law, then how can the federal government place them in a federal prison facility within the United States?

Also conveniently forgotten by most, is to get to SuperMax, the detainees will have to set foot on US soil.  [They will at that point become landed immigrants.]

Under our Constitutional rule of law, once any person, detainee or tourist, shipwrecked soul or terrorist, sets foot on US soil, thus is a landed immigrant…they are afforded all the Constitutional protections enjoyed by all US citizens and US persons under law.

But what if we just ignore that landed immigrant thing?

Sending the detainees to SuperMax will establish that the US government can and will incarcerate persons on US soil for crimes not enumerated, nor charged through due process of law, and punish them, suspending habeas corpus, and a lot of other minors points of law that if allowed to be ignored will be a clear and present danger to all US citizens and US persons.  A new Pandora’s Box will be opened.  Trying to close it will not be an easy task.  Legal precedent is like that.

How about we just toss aside Johnson v. Eisentrager?   Let’s extend the jurisdiction of the US judiciary to any spot on earth…anywhere the judiciary feels it can.  Or worse, let’s allow Congress to pass a law that states our courts have jurisdiction outside the United States.    We mean well, what could possibly go wrong?

Well, reciprocity in law, customs and courtesies is the foundation of so-called “international law.”

If our judiciary can extend US Court jurisdiction to any place on earth…why cannot Germany or Zimbabwe or China do the same?  Armed court officers of any nation on earth coming to the United States or to any other country and arresting US citizens for crimes they “committed” under Chinese law in Brazil, or Norway, or Burkino Faso?  Or the mullahs of Iran heading over to Germany and arresting US service members for “crimes” that Shariah law finds repugnant?  Or Spain attempting to indict, arrest and incarcerate US government officials?  Like that will never happen?  Ever?

And what will happen to the concept of national sovereignty?

Guantanamo Bay Naval Station was chosen by the Bush Administration because the Bush Administration actually took a look at our law, our Constitution, and US Supreme Court rulings, and that matter of sovereignty and jurisdiction.

The Cuban-American Treaty, was signed on February 17, 1903 by the first President of Cuba, Thomas Estrada Palma.  In accordance with that treaty, the Republic of Cuba granted a perpetual lease to the United States for the Guantanamo Bay area for the purpose of a coaling and naval station.  Under the treaty, the United States will have absolute jurisdiction and will recognize the Republic of Cuba’s ultimate sovereignty over the area.

Over the decades, US military personnel and US civilian contractors and dependents of US military personnel were subject to US law.  Non-US persons residing or working in the Guantanamo Bay Naval Station were subject to Cuban law.

Then, in 1959, a couple of guys came down from the mountains and overthrew the Batista regime…the Cuban government, and established their own government, originally led by Fidel Castro, still operating under Raul Castro.  Since the early 1960’s Cuban workers were no longer permitted by the Castro  government to enter the Guantanamo Bay Naval Station.

The US government has not recognized the Cuban Castro government.  But we still recognize all treaty obligations established with Cuba prior to Castro seizing power.  Every year, through the good offices of the Swiss Embassy in Havana, the US sends a lease payment check to Cuba, as required by our treaty obligations.  Since 1959, Cuba has refused to cash any of these checks.  To do so would recognize US control over Guantanamo.  Castro refuses to do so.  Having a “foreign colony” on Cuban soil being recognized by Castro’s Cuba is anathema to the Revolutionary Principles.

The Bush Administration took advantage of Castro…and why not?

Under treaty agreements, the detainees in a pre-Castro Cuba would have been subject to Cuban courts…since they are not US-military personnel.  Thus, it is the refusal of Castro’s Cuba to adhere to treaty obligations that enabled Guantanamo Bay to be used to build detention facilities for non-state armed enemy combatants captured by the US military and our intelligence agencies in time of war.

Yes, all of this is lengthy and cumbersome, but in order to get to the roots of why “Gitmo” was selected and why we cannot just bring the detainees to Supermax or any other facility on US soil, one really has to understand the basics.  Most pundits do not.  Most commenters who over the years have suggested that the detainees be sent to Nancy Pelosi’s neighborhood, or sent to Obama’s neighborhood, or to Alcatraz, or to Death Valley or the frozen wastes of Alaska, or the backwoods of Idaho…wherever…seem to be willing to ignore law, and the Constitution, or have no understanding as to why “Gitmo” was selected in the first place.

Before the Obama Adminsitration is permitted to turn flights of fancy into US law, through an ill-founded Executive Order…and set precedents across a wide range of legal issues and matters of sovereignty and even our own Constitution, perhaps it would be a wiser choice to actually engage the issue with facts, the rule of law, and the Constitution, and stop pandering to whomever has the loudest cheering section in the realm of American of public opinion, opinion that for the most part has no basis in law.

UPDATE: According to Foxnews Friday aftgernoon, the Obama Administration has selected another Gitmo detainee to be tried in US federal court.

Federal prosecutors told a court Friday they no longer plan to hold Mohammed Jawad, an Afghan, as a wartime prisoner.

Instead, they wrote in a court filing, they plan to begin a criminal investigation. That would most likely mean bringing him to criminal trial in the United States.

Even if that happens, Jawad is not likely to be transferred soon. For the time being, prosecutors say, he will remain at a camp in Guantanamo, while an “expedited” criminal investigation is conducted.

So far, the only Guantanamo detainee brought to face trial in a U.S. criminal court is Ahmed Ghailani, a Tanzanian who was sent to New York in June to face charges he helped orchestrate two bomb attacks on U.S. embassies in Africa in 1998.  Rather than try Ghilani in Tanzania, where all the others involved in the bombings have been tried…we’ve extended US legal jurisdiction to Tanzania.

In reading the Foxnews report, one has to look carefully at the language and semantics.

Jawad has been detained at the U.S. naval prison in Cuba for 6 1/2 years, after he was accused of tossing a grenade at a jeep in Afghanistan that wounded two U.S. soldiers and their interpreter.

Earlier this month, the Justice Department earlier agreed not to use his confession after his lawyers argued the statements were the result of torture by Afghan authorities.

Jawad’s attorneys say he was only about 12 years old at the time, although there aren’t records of his birth in a refugee camp in Pakistan. The Pentagon says a bone scan shows Jawad was older, about 17, when he was arrested.

In October, a military judge threw out a confession made by Jawad following his arrest. The judge found that Jawad initially denied throwing the grenade and only admitted it after Afghan authorities threatened to kill him and his family if he didn’t confess.

The military tribunals at Guantanamo Bay allow evidence obtained through coercion but not torture, leaving it to a judge to decide whether the line between coercion and torture has been crossed. In Jawad’s case, the judge found the threats made by the Afghans were torture. Jawad is now suing for his release in U.S. District Court in Washington.

Afghan officials turned Jawad over to U.S. custody shortly after he confessed. He was questioned by U.S. officials overnight. The military judge also said Jawad’s statements during that interrogation couldn’t be used because they were tainted by the torture at the hands of the Afghans just a few hours earlier.

Jawad will walk away a free man.

There is no evidence that has been under custody of the US prosecutors to support the allegation of his being a terrorist…and seemingly little information that he was indeed tortured by the Afghans…though we are still attemtping to re-write Webster’s on the meaning of torture.

That Jawad has been afforded the “right” to sue in federal court…this already demonstrates that there are those in government making it up as they go along, to include within the federal judiciary.  jawad has no standing in federal court for acts allegedly committted to him by Afghans in Afghanistan.  That is a matter for Aghan courts.  The door has been opened a bit further…jurisdiction and the rule of law is being pushed quietly aside in order for Obama to make political gain.

Even the use of the term “war prisoner” instead of “nonresident enemy alien” further clouds not only jurisdictional matters but may open the way for all the Gitmo detainees to be granted Prisoner of War status, in clear violation of the Geneva Convention.

In our unilateral dismissal of provisions of Geneva we signed, as did dozens of other nations after the Second World War, are brigands, bandits, saboteurs and terrorists now considered soldiers with full Geneva guarantees?

if so…then how can a “war prisoner” or POW be tried in a civil or criminal court for acts committed on the battlefield prior to capture?

Pandora’s Box is opening more and more each day.  With Geneva gutted, what then?

Can Spain now round up US service members from Rota or Morón Air Base and try them in Spanish civilian federal courts for alleged war crimes if they served so much as a mess hall server in Iraq or Afghanistan?   Will China find it conveneient top round up US personnel on leave or liberty in Hong Kong and try them in Chinese civilian courts?  Or can we look forward to the day when actual POW’s are tried for crimes by whatever government chooses to do so in direct violation of the Geneva Conventions?

And, will US military personnel decide that a dead jihadi is the only option permitted them under the new rules.  If you can’t speak Pastun, then how can you Mirandize a captee?  A dead captee can’t be Mirandized.  So…will we look foraward to US military personnel being tried en masse for murder for firing their weapons on a battlefield?  Will enemy combatants be offered more legal protections than our own military personnel…by our own judicial system?

And lastly, has war fighting now officially become nothing more than an extension of law enforcement run out of the Department of Justice?

Recently in the Green Room:



Trackback URL


And Obama taught constitutional law, did he?

Will someone please inform all the lawyers who took con law from him that may be entitled to sue under malpractice laws…..


acat on July 24, 2009 at 12:03 PM

No way this is right. Bush is an idiot who couldn’t do anything right, and Obama was a Con Law professor.


cs89 on July 24, 2009 at 12:28 PM

Sarc or not…

Why haven’t people brought up this court case before now?

Scott H on July 24, 2009 at 1:52 PM

Why haven’t people brought up this court case before now?

Scott H on July 24, 2009 at 1:52 PM

This case is well known to a small subset of individuals. It has been discussed a lot in various specialized forums.

Thank you coldwarrior, for a great summation.

Too bad it has to Gitmo, not Shemya. I’ve enjoyed my time ashore in Gitmo. Nice place.

FWIW VADM Bulkeley was instrumental in ensuring Gitmo remained in US hands after Castro took over. An interesting story of confrontation with communists, back in the day.

NaCly dog on July 24, 2009 at 2:34 PM

I’ve never seen this whole thing laid out so well before, Coldwarrior – great job! I guess Gitmo must have been selected by Bush during one of those phases when the Left says he was a diabolical mastermind, who could fool the massed genius of the Democrat caucus into supporting a transparently illegal war. I like to think of those as his “Spridle” phases. The rest of the time, the Left says he was a simian imbecile who could barely handle reading children’s literature. I call those his “Chim-Chim” phases.

Out of curiousity, do we know what happens to the funds from all those uncashed checks sent to Cuba, to pay for the Gitmo lease? I would assume the money just rolls back into the Treasury, but it might be a good idea and check to make sure the American bank processing this transaction is not run by someone with relatives in Congress… or any relatives named Kennedy…

Doctor Zero on July 24, 2009 at 2:45 PM

NaCly dog on July 24, 2009 at 2:34 PM

Shemya? Despite what former residents have stated, Shemya is indeed part of the United States.

Besides, the penguins and seagulls up there have standards…a bunch of lonely NSA, ASA, NSG and AFSS guys is one thing. Jihadis?

Scott H on July 24, 2009 at 1:52 PM

Some of us. going back to the old Captains Quarters days have raised this and discussed this and a few of us have sent copies of the 1950 J v. E. ruling to our members of Congress…apparently to no avail.

Is the case too obtuse for lawmakers to understand? Hardly. Pretty cut and dried.

I have found that a mere mention of J v. E. is a thread ender on just about any blog. Not as sexy I suppose as fantasizing about having detainees housed in dormitories within the US Capital or in a half-way house next to the Obama’s in Chicago.

But until J v. E. is tossed out in its entirety….and if that happens we can kiss judicial sovereignty goodbye…J v. E. is, to put it in AlGore terms…an inconvenient truth.


coldwarrior on July 24, 2009 at 2:49 PM

Doctor Zero on July 24, 2009 at 2:45 PM

Not sure what the treasury rules are these days. But uncashed checks are a debit, and at simple interest, Castro and Company have a rather large untapped source of income waiting for them. I believe the annual payments are presently in the $5k range, according to treaty. At one time they were to be paid in US gold coinage. But $5k annually over 50 years, simple interest…any accountants out there?

The sticking point is that recognition of the US lease on Guantanamo is in violation of Castro’s Revolutionary Principles. As recently as a year ago, Castro demanded that the US “give” Guantanamo Bay back to Cuba. I am sure that Russia, China, and even Venezuela would love to see that happen. Best harbor in the Caribbean.

coldwarrior on July 24, 2009 at 2:56 PM

Note that the 1903 treaty requires both signatories to end the perpetual lease. That is why the U.S. still uses the base today. I believe we pay $4,085 a year, and Castro cashed the first check he received around 1950. None cashed since then. I was told by a Suppo in Gitmo that the checks do not earn interest.

Coldwarrior, of course Shemya is US soil. But I like to dream of sending desert dwellers to that climate. If they misbehave, suspend them from the top of Cobra Dane. (It’s not a straight drop, IIRK). Palmyra Atoll fails as a holding pen for the same constitutional issues.

Agree on the valuable harbor and the associated infrastructure. Navy ships no longer go there for refresher training, but the place is strategically situated.

NaCly dog on July 24, 2009 at 4:09 PM

NaCly dog on July 24, 2009 at 4:09 PM

Debriefed a Soviet navy officer, submarine service, back in the 80’s. He asked me what large US city was located on the coastal islands of Alaska. I could only think of Dutch Harbor, not more than a large village, and the officer insisted that there was a very large US city in the Aleutians as he had seen many large US aircraft taking off and landing on an island at the end of the Aleutian chain. He was talking about Shemya as seen through a periscope.

For security purposes, apparently, even as a Soviet navy officer, he was not privy to Soviet intel on the activities on Shemya.

After that particular debriefing session I always thought of that old John Belushi movie…”1941″…and the Japanese sailor madly screaming “Horryrood! Horryrood!” after “catching” a nude American girl swimmer on the periscope.

coldwarrior on July 24, 2009 at 4:26 PM

LOL! Now if he was GRU –different story.

NaCly dog on July 24, 2009 at 4:28 PM