The Guantánamo facility at 10: an assault on our constitutional government
Worthwile reading (imo).
The 10th anniversary of the opening of Guantánamo Bay, Cuba, as a detention facility and the diversion of terrorism prosecutions into a new military commission system is now upon us. Consequently, I thought I would take this opportunity to briefly explain why I, an Army Reserve Judge Advocate General officer with more than 30 years of active and reserve military service, would volunteer as defense counsel for prisoners being held there.
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Why does all of this matter? In part, because constitutions and constitutional ideas matter. As evident in Yoo and Delahunty's legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.
But it matters also because on this 10th anniversary, Guantánamo and the military commissions are metastasizing into our whole legal system. As the French war against the anti-colonialist insurgents of Algeria highlighted, the growing disrespect for "legal niceties" would come to be applied in France itself against political adversaries. Could that happen here? Posner and Vermeule suggest that dissent to policy may need to be controlled, that is, free speech curtailed. Putting aside the potential for misuse against political enemies, is that even desirable for national security? Our allowance of dissent led to our withdrawal from the Vietnam War before the collapse of our economy which, with hindsight, few question any more. Contrast that with the Soviet Union's defeat and total collapse resulting from its war in Afghanistan, purely at the insistence of the Communist leadership.
We have used the vague and overbroad charge of "material support for terrorism" as cause to investigate anti-war groups in Chicago and Minneapolis, predictably chilling speech and dissent. Critics have suggested that recent legislation passed would now require the military to detain such dissidents. Or what about gun store owners, gun manufacturers and the National Rifle Association, all of whom could be accused of having a hand directly or through propaganda in providing firearms downstream to drug cartels in Mexico, alleged to have ties with Mideast terrorist groups? Military detention for them?
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202538005807&The_Guantnamo_facility_at__an_assault_on_our_constitutional_government?du
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