In his speech on the 21st President Obama discussed what to do with the people detained at Guantanamo. He said that there were a few people there that are enemies of the United States, but could not be tried under normal procedures because the evidence against them was tainted. That means we tortured them, and any court civilian or military will reject any case where we tortured the accused. The President suggested that he would create some new legal framework to allow us to keep these people imprisoned despite the fact that we can’t try them. Such a framework would be a very bad idea. What is to stop such a framework from being used against others in the future? Surely any such attempt would be found unconstitutional. We need to keep these people in prison because they are enemies of the United States, but we can’t convict them in court because we tortured them, and we shouldn’t create a framework that could be used against others. So what can we do?
What we need is a bill of attainder. That is legislation that says that a list of people will be imprisoned, or executed, bypassing a trial. However, we can’t do that either because it is explicitly prohibited in the Constitution. So we need to put it into the Constitution. We need a Constitutional Amendment of Attainder. It would just list a few guys who are in Guantanamo, and we are sure are enemies, but we can’t punish through normal means, and it would say that we can punish them. It will not create any precedent because it would only apply to those people named and it would be practically impossible to reproduce against others in the future because of the difficulty of getting an amendment passed.
Comments (11)
So what did we do before Bush that worked so well, but was thrown out in a lust for revenge and now it seems the desire for some "tortured" link between Saddan and Osama?
We have held POW's during time of war. This has been accepted practice. It should still be today. There is middle ground between letting them roam the street of New York and locking them away without a trial for life. It's called POW status. There is only one reason to deny POW status for these people...to try and skirt the Geneva conventions. You would not be able to torture these human beings into making up a link between Saddam and Osama if they were protected.
The proposed amendment to your Constitution would fail, mostly because the law would not have general application to all, but only to a select few that, for political reasons, are deemed enemies of your state. This itself would be said to contradict the rule of law: everyone is not equal in the eyes of that law; and power is wielded arbitrarily.
In essence, the state has committed a crime. Although perhaps politically unpalatable, the only way to get out of the mess is to try to make amends and face the consequences of detaining civilians contrary to the rule of law in the first place.
We do what we've always done with law breakers. Give them a lawyer and a trail. We protected ourselves during the wars without having off shore prisons and "unknown" people jailed. It is way to spread fear rather than protect us.
Prior to 911 many "so called terrorists" were in our country yet they government did not arrest them. They even stopped Whistle Blowers.
This war is longer than WWII and we are in a few countries (or so they make us believe). They don't want to win but have the powers that war brings...also the profit. We are in many countries around the world with numerous bases.
We are acting like an Empire which most Americans would not approve. We had a revolution against an Empire called the East India Trading Corporation (the British royals who profitted off us and refused to give us rights, stole our business, etc.). Now it's two hundred or more years later and we want them back in? Both Blair and Bush signed the Downing Documents prior to 911.
It is not against an enemy but a ploy to remove our rights and destroy our democracy (and way of life). Their goals are not ours. Bin Laden didn't do this to us but our own.
We want our rights back or we are not a democracy or any thing like it. Our enemies or terrorists who broke our laws should be treated with the same system or we will be a target by them.
I still think we should just trade them for other prisoners. Some of our allies, like Pakistan, probably have soldiers they'd like to get back. The assumption would be that after the exchange took place both sets of prisoners would go back to fighting, them against us and us against them. Sounds fair to me.
Haven't you heard? They're TARRORISTS! Why...they can leap tall prison walls dematerialize and change shapes and sorts of things...why they're tooo dangerous of a maximum security prison and you wanna just send em back?
None of this would be an issue right now if we hadn't tortured them. If they were guilty they could have been charged. If not or we didn't know enough, they could have been treated as prisoners of war with full protection of the Geneva conventions.
There is no one to blame but Bush if the US is forced to release these people...that is...those who were actually terrorist and not innocent people turned in for some bounty because their neighbor didn't like them.
Regardless of the merits (or lack thereof) of the idea, the notion of having to continually amend the Constitution to update a list is unworkable.
Nope, we don't need this. US Constitution states that the law of the land includes treaties we have signed. This includes the Geneva Convention, which establishes the rights of combatant soldiers. Under the convention, combatant soldiers must be in a uniform and must carry an ID card containing information specified by the convention. Since the Guantanamo detainees possessed neither, they are not covered by the Geneva Convention and should be dealt with as unlawful combatants. Per the Convention, we can simply summarily execute these people (as we should have done on the battlefield). Thus no need for the expense of Gitmo, etc. Only reason to detain them is for interrogation purposes. They should be executed after they have outlived their usefulness.
Turn them over to Jack Bauer.
pzkfwvi
Show me where the Constitution or the Geneva conventions allow the executions of ANYBODY without trial on the battlefield OR ANYWHERE ELSE! It isn't there.
However there ARE laws on the books that make inciting violence a crime...it seems to me you are breaking the law. Perhaps you should be rounded up and interrogated with your own methods to see if you are in league with any OTHER terrorists.
luvwith
No one said there were laws allowing executions of people without a trial in the Geneva convention or Constitution.
That's what people don't like. We signed that world Geneva treaty to not allow that type of thing.
If we torture,etc. it puts our troops on danger of the same.
Steven:
Read the post by pzkfxbi:
"Nope, we don't need this. US Constitution states that the law of the land includes treaties we have signed. This includes the Geneva Convention, which establishes the rights of combatant soldiers. Under the convention, combatant soldiers must be in a uniform and must carry an ID card containing information specified by the convention. Since the Guantanamo detainees possessed neither, they are not covered by the Geneva Convention and should be dealt with as unlawful combatants. Per the Convention, we can simply summarily execute these people (as we should have done on the battlefield). Thus no need for the expense of Gitmo, etc. Only reason to detain them is for interrogation purposes. They should be executed after they have outlived their usefulness."
He claims the Geneva conventions allow US troops to execute unarmed prisoners without a trial. I am simply asking him to defend his nonsense by pointing out where it states that we have the right to do that.