When discussing the issue of the military prison in Guantanamo Bay and enemy combatants, its important to understand the parameters of the debate. Prior to September 11th, American policy toward terrorism was reactionary instead of proactive. It was the belief that the criminal justice system was the appropriate forum to address the purveyors of terrorism outside the territorial bounds of the United States. Instead of fighting a war on terror, American foreign policy denied the obvious, radical Islam was at war with America. This approach proved to be ineffective and one that laid the ground work for the 911 attacks. This is not just the opinion of a majority of Americans, it is one of the conclusions of the 911 Commission. Simply put, it's the exercise of common sense.

During the last election, then candidate Barack Obama promised to close the military prison in Guantanamo Bay and ban the use of water boarding if elected. He called Guantanamo Bay a "sad chapter in American history" and stated that the "detainees" could be tried in U.S. civilian courts. He characterized water boarding as "torture". Upon his election and on his second day in office, President Barack Obama issued a series of executive orders requiring that the prison at Guantanamo Bay Cuba close within one year, banning the use of water boarding or extreme interrogation methods and halting the military commission trials pending a review. While he delivered on his promise, he would soon find out that there is a vast difference between running a political campaign and actually engaging in the practice of governance. 

One of the key issues surrounding the debate over Gitmo is the term "enemy combatant". During the wars in Iraq and Afghanistan, several enemy combatants were captured on the battlefield. They are defined as individuals who were engaged in armed conflict with U.S. military forces, however there is a important distinction; those captured and sent to Gitmo were not members of any established military and were in civilian clothing often engaging in acts of irregular armed conflict; terrorism. As such, these individuals meet the legal definition of "unlawful enemy combatants". The distinction is important; the Geneva Convention does not apply to "unlawful enemy combatants". The very nature of the Convention is to establish a system of treatment for members of an established military force who agree with the rules of engagement when engaging in armed conflict; lawful enemy combatants who are entitled to Prisoner of War (POW) status. Those who are irregular do not comply with these standards and are not covered. An example is seven Germans who were caught off of Long Island during World War II. Their expressed purpose was to engage in espionage. Even though they were members of an identified or formal military force, they were not in uniform and operated outside the scope of the Geneva Convention. Accordingly, all were given military trials, found guilty and were executed. Based on the Geneva Convention and by definition, the Bush administration rightly defined members of Al Qaeda and the Taliban as unlawful enemy combatants.

The right to try unlawful enemy combatants by military tribunal was codified in 1942 by the US Supreme Court in Ex Parte Quirin; "By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also 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. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals". In Johnson v. Eisentrager,1950, the U.S. Supreme Court ruled that US Courts had no jurisdiction over German war criminals being detained in Germany by US authorities. The key determining factor was the issue of Sovereignty in which the court found that the U.S. while occupying Germany did not have actual sovereignty.

The United States has always held itself to a higher standard in the treatment of prisoners of war or enemy combatants. No where in our history except for our treatment of Confederate soldiers during the civil war can it be said that the U.S. tortured any POW. Abu Grab while not torture was violative of the Geneva Convention and those who were involved were tried and punished.  The same cannot be said of other nations. As to water boarding, it is important to understand what it is and what it is not. An individual is placed on a board upside down and water is poured over the head which gives the sensation of drowning. All U.S. troops are water boarded as part of their training to prepare them to withstand this technique. If it is torture, the United States will have to prosecute several million cases. This technique was actually applied to three high value unlawful enemy combatants which resulted in actionable intelligence that prevented an attack on Los Angles which saved thousands of lives. What is the value of an American life?

Three Supreme Court cases radically changed the status to those deemed unlawful enemy combatants. In Rasul v. Bush, 2004 the court determined that while the treaty with Cuba gives Cuba "complete sovereignty" and U.S. "complete jurisdiction" over the base at Guantanamo Bay, the U.S. had de facto sovereignty. With this finding, the court ruled that U.S. Courts have jurisdiction and that "enemy combatants" who were captured on the battlefield in Afghanistan but who were housed at Guantanamo Bay have a right to habeas corpus; the right to challenge their detention without trial.  In response, Congress then passed the Detainee Treatment Act of 2005 which limited any future application for habeas corpus. In Hamdan v. Rumsfeld, 2006 the court held that the Bush Administration did not have congressional authority to set up a system of military commissions as their structure and rules of procedure violated the Uniform Military Code of Justice and the Geneva Convention. Congress then moved to pass the Military Commission Act of 2006 which codified the Military commissions initially set up by President Bush and again restricted Habeas Corpus to the "detainees". In Boumediene v. Bush, 2008, the court ruled that the Military Commissions Act could not limit enemy combatants right to habeas corpus and that the Act provided insufficient procedural safeguards.

It is important to understand that the Bush Administration acted consistent with the law and treaty obligations relating to unlawful enemy combatants. Based on the detainees status as "unlawful" enemy combatants and the circumstances of their detainment (sovereignty), the established precedent called for military tribunals to adjudicate their status. Again, we are not talking about criminals. These individuals are terrorists who were captured on foreign battlefields while engaged in armed conflict with U.S. armed forces. Yet the Supreme Court altered their status to enemy combatants thereby extending to the detainees Geneva Convention rights. Going beyond common sense, the court  extended constitutional protections found under the Uniform Military Code of Justice and the right of Habeas Corpus. Applying the court's reasoning in all three related cases, one could argue that any detainee captured on the battlefield has the same rights as those housed in Guantanamo Bay. As radical as that seems, the decision to close Guantanamo Bay and try the detainees in US civilian courts is outright absurd. Will every enemy combatant captured on the battlefield be required to receive Miranda warnings?  Will the speedy trial requirement apply? How can a federal court examine evidence obtained on the battlefield and apply the rules of evidence consistent with civilian criminal cases to foreign nationals who have engaged in irregular warfare against American forces on foreign battlefields contrary to the Geneva Convention? It's apparent that this approach is not viable. If they are acquitted, what will happen?

Attorney General Eric Holder indicated that he was considering a plan to release some of the detainees into the US. The detainees in question are seventeen Chinese Uighurs who have received weapons training in terrorist camps. After the firestorm that followed his remarks, the US Senate this month voted 90-6 to block any transfer of Gitmo detainees into the US. This followed a US House vote on a similar bill which is attached to the supplemental war funding bill. The Senate also striped the 80 million the President requested to close Gitmo until he provides a  plan on what to do with the detainees. In response, the President acknowledged  "There are no neat or easy answers here". He then went on the claim that the decision to open Gitmo and allow it to continue would , "set back the moral authority that is America's strongest currency in the world.  I refuse to allow this problem to fester.  Our security interests won't permit it.  Our courts won't allow it. And neither should our conscience." He then blamed the prior camp at Gitmo for creating more terrorists even though the prison was opened to house terrorists, "The existence of Guantanamo likely created more terrorists around the world than it ever detained." 

This month, FBI Director Robert Mueller testified at a US House hearing that there is a risk of detainees "radicalizing others" if  released into the US. He expressed those same concerns even if the detainees are held in maximum security prisons. Even though some of the detainees cannot be prosecuted, their release from Gitmo represents some real difficulty. A unreleased Pentagon report found that one in seven of the 534 detainees released to foreign counties returned to terrorist activities or armed conflict against US forces. Apparently the President acknowledged this concern. , "...there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.", "I want to be honest: this is the toughest issue we will face.  We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country.  But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States.  Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.  These are people who, in effect, remain at war with the United States." The President has recently ordered the resumption of military trials which include restrictions on the use of evidence obtained during extreme interrogation methods and the use of hearsay evidence.

The President's desire to close Guantanamo Bay is misguided. His reluctance to rely on common sense is alarming. The lessons of history offer guidance. His plan to treat terrorism as a criminal offense is not an alternative to Gitmo, it's a suicide pact.