Mr. Obama, Keep Guantanamo Open
By: Patrick Jarkowsky
Issue date: 11/25/09 Section: Opinion
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During the event, I noticed that one of the biggest applause lines for the liberal mock candidates was prompted by uttering these few simple words; "I will close down Guantanamo Bay." A year has passed, but the issue of Guantanamo Bay continues to dominate the media.
Unfortunately, the American people have been presented a false dichotomy that only serves to devolve this issue into a liberal vs. conservative dogfight.
Guantanamo Bay need not be the Qur'an flushing, water boarding, sleep depriving hellhole that Liberals make it out to be. Nor should it function as some earthly black hole; a view held by a large number of Conservatives.
It may be helpful to clear up a major misconception regarding the rights of the individuals being held at Guantanamo.
Although the Supreme Court has ruled that Guantanamo detainees deserve habeas corpus rights, these individuals are not citizens of the United States nor are they legal residents. Therefore, they do not have the rights guaranteed under the US Constitution and should not have the ability to file a writ of habeas corpus with the Supreme Court or any court of the United States.
Article I, Section 9, Clause 2 of the Constitution affords citizens the right to file a writ of habeas corpus, but surely that right, as well as the many rights spelled out in the Constitution, does not apply to citizens of the international community.
The Constitution was not drafted with the purpose of being an international treaty nor was it meant to be a guarantor of the rights of man. It was drafted with the purpose of being a guarantor of the rights of natural-born citizens or legal residents. Guantanamo detainees are neither.
In cases such as these, when domestic law is not a sufficient source of guidance, we must turn to international law.
In the theatre of war, a privileged combatant, a person, more often than not being part of the military or organized militia, who takes a direct part in the hostilities of an armed conflict within the law of war, is upon capture afforded the rights of a prisoner of war under the Third Geneva Convention.
The important distinction made by the Convention is the recognition that not all captured individuals necessarily belong to the military or organized militia. Article IV governs those that do; Article V governs those that do not.
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