This is what I mean by "change of address"

[zipplewrath]

I've gone back and reread the presidents address on national security. In discussions around here, I frequently mention that President Obama didn't offer to "close" Gitmo, but merely give it a change of address. This is the critical paragraph:

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're 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, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or 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.

Now, what he just basically said was that there are people who he believes are a direct danger to the US because of knowledge and/or training they have received. Really, he goes on to describe people whom otherwise might be describes best as "soldiers". He wants to declare that these people can be held without trial. So we will continue to hold them at "Gitmo" it will just have a different address. There will be alot less of them, because he is going to try to process as many as he can through some sort of court system.

Yes, it is followed up by this qualification:

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

However, all he's really doing is talking about "spreading the blame". The courts have repeatedly shown great deference to the presidents in terms of war powers. And the congress has shown itself to be more willing to detain these people than even he has been. So he's not really offering anything more than a reduction in his direct responsibility for holding these people.

This is a prescription for permanent war. Mind you, we have not declared war. We have not identified who the opposition is other than vague terms like "people who intend on doing the US harm". And yet we want to establish a system by which we can bring people here and detain them without trial. Strictly speaking, it could include American citizens as well.

One may be comfortable giving such power to Obama himself, but this is a power that will long out live his administration. I'm sorry that the "evidence may have been tainted". That's what happens when people believe there will be no consequences for their actions. But this is not a reason for permanent war, and it is not a basis "consistent with our values and our Constitution.

He took an oath. Yeah, the Chief Justice screwed it up, but in the end it said "preserve, protect, and defend the CONSTITUTION OF THE UNITED STATES OF AMERICA". There is nothing in that oath about "national security". There is section 9:

Section 9 - Limits on Congress

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

Creating a new set of courts, a new set of crimes, for which people will be held without trial is a significant deviation from "our values and our Constitution".

I'm sorry. He's wrong. He hasn't closed Gitmo, and he doesn't plan on closing Gitmo. Furthermore, he intends on setting up a system for maintaining it in perpetuity. Oh, he'll change the address, but he wants there to always be a Gitmo. Future Presidents will then have the structure in place to reopen Gitmo at will.

[On the Road]

1. For Those That Have Commanded Taliban Troops,

I don't know they couldn't be treated like POWs. Afghanistan may not have been a declared war, but neither were Vietnam or a number of others.

[zipplewrath]

2. Yes, that's the constant war problem

We don't declare war, and the entities against which we wage war barely qualify as state actors. It creates a context in which we can be, and potentially will be, at war forever. There is no one with which to negotiate a peace treaty. No one with which to have an exchange of prisoners.

When the right wing argues that we can't "extend these people constitutional rights" I would dispute that. Treating these people like we've treated the Mafia, Al Capone, Manuel Noriega, or any other host of people, including Timothy McVeigh, is really our only hope to avoid a constant state of war, and a Gitmo that never ends.

[On the Road]

3. I Realize the Undeclared War Issue

but during other undeclared wars, prisoners were taken and treated according to Geneva guidelines without controversy. For some reason those rules do not seem to be applied to the war in Afghanistan.

[zipplewrath]

4. We've never been "at war" with an ideology

We're not "at war" with a state this time. We're at war with "terrorists". These are actors "outside" of a "state".

[On the Road]

5. In the Afghani War,

the Taliban was a traditional military foe. This is not matter of the legality or desirability of invading Afghanistan, but it seems to me the US was fighting an political entity with a organized military. I can't understand the excuse for not following POW procedures.

[zipplewrath]

6. They weren't behaving that way

And at this point, the folks we still have, don't easily fall into that category. i.e. Karzai wouldn't take them back if offered, and we don't want to send them to Pakistan.

[On the Road]

7. Yes, But the Issue for Treatment of Prisoners

is whether there was a traditional war againt an organized opposition. That is not true of Al Qaida; I would think it is true of the Taliban. There may be guerilla elements to the war, a lack of uniforms, and other irregularities. But the Taliban governed the country for years and are a recognized, organized opposition. Unlike Al Qaida, which is not that much different from the Symbionese Liberation Army.

There is a debate about captured terrorists who do not work for any state. There should be no such debate about a leader of Taliban troops.

[zipplewrath]

8. I know your point

I don't completely disagree. There is the problem of course that, especially at this point, they are not state sponsored actors. If we were to treat them like POW's, we'd return them to Afghanistan. I don't think Afghanistan would take them. The taliban now qualifies as a stateless army.

It is why we must treat this as a "legal" problem. Maybe on an international basis, in a world court or something. But ultimately we can't apply the rules of war. Choosing a war structure for this problem is to create a permanent state of war. And to create a "Gitmo in the US" is to codify this permanent war directly into our legal structure.