February 2004
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Day February 13, 2004

Rumsfeld on Guantanamo and the Bill of Rights

In front of the
Miami Chamber of Commerce, Rummy defended the Administration’s policy on
Guantanamo Bay prisoners.  We’re holding roughly 650 prisoners at
our naval base in Cuba, without access to lawyers, without trials, essentially
without civil rights.  Some are (or have been) U.S. citizens, but most are
not.  Some have been held for two years.  All are classified as
“enemy combatants” rather than criminals or POWs.  Naturally,
a host of folks – including human rights groups, the ACLU, and many
citizens – have spoken out against the denial of due process and civil
rights.  But nobody’s listening.  Keeping the prisoners for
intelligence (i.e., interrogation) and eventual use in highly publicized
“tribunals” apparently outweighs our cherished adherence to the
rule of law.  

Here’s a few
choice Rumsfeld words on the subject:

recognize that in our society the idea of detaining people without lawyers
seems unusual, detaining people without trials seems unusual.  After all,
our country stands for freedom and it stands for the protection of

But I’m
sorry, Rummy…this isn’t a debate.

Detaining people
without lawyers isn’t “unusual.”

Detaining people
without lawyers is a direct
of the Fifth Amendment to the U.S.
Constitution, which says quite plainly:

person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia, when in actual service in time
of war or public danger; nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation

The final clause,
“nor be deprived of life, liberty or property, without due process of
law” is the kicker.  The amendment extends this right to “everyone
– see the first two words.  It doesn’t say “except enemy
combatants” or “except in time of war”, it says
gets due process.  It doesn’t even say
“citizens.”  It says everyone.

Naturally, this has
to be part of the reason for holding the detainees in Cuba, at Guantanamo Bay.
 The appellate court in Washington, D.C. has ruled that the Guantanamo
prison camp is part of the “sovereign territory of Cuba” and thus
is outside the jurisdiction of U.S. laws.  I’m sure this will
continue to hold up, given the Rehnquist Court, but the ACLU is assisting with
an amicus brief in Rasul v. Bush, which hasn’t been decided yet but was
accepted for the Court’s 2003 term.    

Notice, too, that
the Fifth Amendment doesn’t say “on American soil.”  No
geographic limitations are given.  The Administration will likely win on
the territorial “technicality.”  They’re saying, in
effect, “yes, we’re violating the
Constitution, but not on American soil
.”  And
they’ll get away with it.  Rehnquist has a 5-4 majority on the
Court, and has an incredibly poor record of upholding the civil rights of
criminals who are U.S. citizens.  The folks at Guantanamo have zero chance
of bucking this trend.

And interestingly, if we set aside
the U.S. Constitution, there’s always the Geneva Convention, which is supposed to govern how
we treat enemy combatants and prisoners of war. And Rummy’s got that covered. Paul Butler,
principal deputy assistant secretary of defense for special operations and
low intensity conflict, has said
that the detainees are not entitled to Geneva Convention
protection because al-Qaeda and the Taliban never signed the Convention, that they
fight without a clear chain of command, and because they’re not civilians. Butler
then goes on to talk about the “message” we’d be sending by giving detainees
“full treatment” under the Convention. And a terrible message it would be, too:
American honors civil rights and its treaty commitments, even if we’re fighting you. Hard to imagine how
that message could be detrimental to our national security, and hard to imagine how
it could be more beneficial to our perception worldwide.

But that’s
not the point.  

we’re holding them does not change the fact that our Executive Branch
decided to take actions in direct violation of the Fifth Amendment. 

The Constitution,
including the Bill of Rights, is the supreme law of the land.  The
President, Vice President, and his cabinet all took an oath upon assuming
office to uphold it.

But even
isn’t really the point.  

The point is our
credibility, and how to stem the tide of peoples and states in the world that
distrust and even hate the United States.  Because we’ll be
respected and secure when other people feel respected and secure.

If the
Administration wants credibility at home and abroad,
why not set a higher standard

If we want other
nations to adopt our political system,
why not practice it ourselves

If we want people
to respect us, why not stop breaking
our own laws

If we want people
to trust us, why not stop acting
like those whom we claim we oppose

Clark Endorses Kerry, joins campaign

Interestingly, what I hoped would happen – Clark dropping out and joining the push to elect Kerry, has come to pass.  Clark appeared in Madison, WI with Kerry today, and offered both his endorsement and actual help campaigning.  This is great news, because it means that we’re starting the next phase of the campaign.  Apart from Dean and Edwards, Kerry’s efforts can now be focused where they should be – on building a coalition to beat Bush.  

I predict that Dean is going to hang in there, because there will undoubtedly be a contender all the way to the Boston convention.  What I hope is that Edwards sits down with Kerry and decides to also throw in his support, possibly with a tacit understanding that he’d be a good VP on the ticket.  Dean will then continue to marginalize himself by claiming that he won’t support Kerry, and by displaying more of his famous anger management abilities.  And the rest of us can get on with the serious business of ensuring electoral votes.  

By my count, if we start with the electoral map from 2000, we need 10 more electoral votes to win, due to changes in population.  I think Arizona is a possible state which might finally lean democratic, there’s a possibility (hard as it is to believe) in Florida, but a lot of our effort needs to be focused on Ohio, in my opinion.  A centrist candidate might be able to gain Ohio, especially if they’re good on the economy and credible in national security.  Getting Ohio, and no defections back to Bush from the 2000 “democratic” states, would win this election for Kerry, and allow us to send G.W. back where he belongs – writing his memoirs in Crawford.