Now that Supreme Court Justice Anthony Kennedy has announced his retirement from the bench, President Donald Trump can revisit the matter of Boumediene v. Bush, 553 U.S. 723 (2008), in which Kennedy cast the deciding 5-4 vote, and wrote the majority opinion, which gave unlawful combatant Islamists who want to kill us, housed at the US military detention facility at Guantanamo Bay, Cuba, the right to petition for habeas corpus, or due process rights.
One of the main points of contention in Boumediene came down to whether or not the 45 square mile slice of extreme southeastern Cuba, is considered Cuban or US soil. The Court could not deny that geographically and politically, Guantanamo Bay is Cuban territory, but, playing fast and loose with the facts, nonetheless declared it “de facto US territory.”
Habeas corpus was denied unlawful combatants held at Gitmo via President George W. Bush’s 2006 Military Commission’s Act. Detainees and their attorney’s argued that since the US controlled the territory and were holding them “indefinitely,” that their clients should be afforded due process of the law and challenge their internment. This is way oversimplifying the decision, nonetheless . . . .
Geneva Conventions and the Law of Land Warfare dictate that only lawful combatants (POW’s) are entitled to extra legal privileges and certain treatment. Unlawful combatants may be shot on sight on the battlefield and have ZERO rights.
In early 2002, after it was determined that unlawful combatants could not be safely and securely held in-country in Afghanistan (see The Battle of Qala-i-Jangi), the detention facilities at Gitmo previously used to isolate trouble makers among the early 1990’s Hatian and Cuban boat people, was available and could be used to house over 250 War on Terror detainees temporarily while a more suitable facility was constructed. Detainees were moved from the initial facility, called Camp X-Ray, to the new facility, Camp Delta, in April of 2002.
The initial Camp X-Ray was used for only 3 months, but was and still is the image the Left chooses to perpetuate when they cry abuse and torture of detainees at Gitmo.
What the Left will never tell you, and even hid at the time, is that the detainees were treated much better than even our own US troops who guarded the detainees and who served there.
Unlawful combatant Islamists who want to kill us who were and are housed at the US military detention facility at Guantanamo Bay, Cuba, are given FREE Qurans, prayer rugs and beads, directions to Mecca on guard towers and detention cell floors; halal and special holy holiday Muslim meals including lamb and baklava; services of US military Muslim chaplains, white robes, beards; world class health care including dental and vision services; special medical equipment not available to host country personnel was/is flown in for them; TV, DVD’s, books, games, sports, an artificial turf field and communication with relatives and loved ones.
To those who would cry abuse at Gitmo, NONE of the 731 detainees who have ben released, nor the 40 currently interred have been beheaded, executed, blown up, hacked to death, dragged naked and lifeless through the streets, drowned or burned alive, all things our enemies have done to us and/or our allies.
There is no moral comparison between how detainees are treated at Gitmo and how our enemy treats captives.
Back to Mr. Trump and how he can take advantage of a retiring Justice Kennedy.
Mr. Trump can write a new Military Commissions Act (MCA). The current one, written in 2009 by then President Barack Hussein Obama and his head of the Department of Justice, Eric Holder, gave unlawful combatant Islamists who want to kill us virtually the SAME rights you or I would enjoy in a federal court of law.
The outrageous standards of the 2009 MCA completely ignore the written language in the Geneva Conventions and Law of War, which stipulate that if a Prisoner of War (POW), or detained person is accused of war crimes, they are to be tried with the same standards as US troops would be tried under the Uniform Code of Military Justice (UCMJ). That is fair, and legal.
What Bush and then Obama created was MCA Light and MCA Extra Light, respectively.
Bush did it so that the US would appear to be more fair than required, and Obama did it so that the legal process would be so arduous and complicated that people would just eventually throw up their hands and then let the bad guys go! Letting the bad guys go was Obama’s mantra during his eight, free-styling years in office, which saw him release the “worst of the worst” of our captured enemies, some of whom went directly back to their previous deadly deeds, including one who had a hand in the deaths of four Americans in Benghazi, on September 11, 2012.
Trump has PROMISED to “fill up” Guantanamo with “some bad dudes.” That’s great, but how they are treated there and how those accused of war crimes are prosecuted matter.
In 1942, six of eight German saboteurs who were caught dry-foot on US soil, were denied habeas corpus, tried by military commission under the UCMJ, and then executed by electric chair, all within eight weeks of their capture. At the time, the US Supreme Court unanimously approved the denial of habeas and the establishment of a military commission, as per the Constitution and the Law of War.
The system can and has worked, but not if everybody needs their fingerprints on a way to prevent justice from being done.
So, Mr. President, I implore you to take charge. Search for your new Supreme Court Justice and then ask the candidates whether they would overturn Boumediene v. Bush. If the answer is “yes,” then you have your man/woman.
From there, craft your new Military Commissions Act, or revert to the original that took care of unlawful combatants during WWII. You could even use the law to deal with invaders (aka illegal immigrants) from other countries. It would be too easy to call them invaders, deny them habeas rights, and then prosecute them under the new MCA. After all, who’s to say whether or not these invaders are not also unlawful combatant Islamists who want to kill us? Besides, there is a war going on, the Global War on Terror, and it’s about time we started acting like it, and the timing just couldn’t be better.