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Constitution & habeas corpus apply at Guantanamo Bay?


Feeding off the article written by good old Peter N at Peter’s Attic, one of my favorite blogs, I have damning evidence against the administration.

Administration View: President Bush has claimed, in removing habeas corpus from the detainees at Gitmo (Guantanamo Bay Naval Base) that these “enemy combatants”are not subject to the U.S. Constitution because, technically, it is not U.S. soil. The base is simply a military installation operated on Cuban soil. Let us be clear – Cuba does not want us there.

Opposition View: Because it is a permanent military installation, and not a temporary one, the law of the land (the Constitution) applies.

Other Useful Notes: Two ideas that are worth prefacing with are jus soli and jus sanguinis. The former means “rights from the land” and the latter “rights through blood”. Basically, if a country practices jus soli, it means being born within its borders means you are a citizen. If a country practices jus sanguinis, it means if one or both of your parents are citizens, you are automatically a citizen. The U.S. happens to practice both.

The path to citizenship for someone who was born under jus sanguinis is that s/he must prove that his/her parent(s) are U.S. citizen(s).

My Argument: If jus soli applies at Gitmo, then it is considered U.S. soil. If it is U.S. soil, then the Constitution applies. Even if jus soli doesn’t apply at Gitmo, the U.S. should pass a Constitutional amendment stating that any endeavor funded by government overseas is subject to Constitutional supremacy.

Possible Proof: On the internet, information is a fluid and incomplete thing, and getting it is somewhat touch-and-go. As such, my research has found that the human and civil rights of those detainees at Gitmo depend on this man. Scott G. Blair was born at Gitmo and has traveled overseas quite a bit. The question is: did he get his passport with a birth certificate, or did he need to go through a consular review? If he was given a passport simply by the fact that his birth certificate “Guantanamo Bay Naval Base Medical Center”, then Gitmo is U.S. soil.

The fate of the United States, and its future, rest on Scott G. Blair’s shoulders.

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Filed under: Culture, Philosophy, Politics

9 Responses

  1. Lawyers for the U.S. government say that the 1903 lease agreement addresses the legal status of the naval base. The lease reads: “While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba … on the other hand the Republic of Cuba consents that … the United States shall exercise complete jurisdiction and control over and within said area.” I interpret that as meaning protection under the Constitution.

    In 1950, the U.S. Supreme Court ruled that foreign nationals outside the sovereign territory of the U.S. are not entitled to key constitutional protections.

    Sort of a contradiction, isn’t it?

    The military, even within the confines of the U.S., play by different rules, too. During the Vietnam War, my (to this day) best friend had a low lottery draft number. The next day, he enlisted and was offered a contract stating which country he wanted to be sent to. He chose Germany and signed on the dotted line. After Basic and AIT training, he was told his orders were changed and to get ready for deployment to Vietnam. He told them, no way, I have a signed contract that says Germany on it.

    His superior officer told him, “Boy? We are the United States government and the U.S. Army. We can change your orders any time we want. Try and sue us.” Fortunately, he got busted on a marijuana charge and at that time, they wouldn’t send you anywhere out of the country. He spent his remaining time in the U.S.

    In his case, of course he lucked out, but it points out the power of government, especially when stuck on a military installation. You play by their rules, not the Constitution and Guantanamo is a Navy base.

    Personally, I’m rather mixed on it. Some of the detainees are responsible for horrible atrocities and I don’t care what happens to them. On the other hand, everyone should have their day in court with competent representation.

    What confuses me is the argument the government has with itself. On military soil, we make the rules but must abide by the Geneva Convention. On foreign soil, we can torture all we want because we don’t have to play by those rules. Which one is it?

  2. vijtable says:

    Dave, thanks for your insightful comments. Certainly the government is using two definitions to apply to Gitmo, which is partly why I’m looking to history for a resolution…

    One major quibble: The detainees may be responsible for atrocities. They haven’t been accused, under the system of law our country practices, of anything. They are being held the same way the king of England held colonists (who also may have committed crimes). I cannot say that they did anything if there is no evidence presented, and no charges are being brought.

    The administration is playing a legal shell game, and the Constitution is one of the things they are trying to avoid dealing with. That alone is supremely scary. I simply want to demonstrate that, if citizenship rules, which are equivalent (constitutionally) to habeas corpus rules, apply at Gitmo, then habeas corpus rules apply. Jus soli proves that Gitmo is sovereign territory (as you mention), and subject to all of the Constitution.

    The military can change the rules for people who are in the military, voluntarily or otherwise. The detainees, and Scott G. Blair, are not members of the US military, which means, if Gitmo is sovereign territory, the Constitution applies.

  3. Sure, Vijtable, the detainees MAY be responsible, but I’m sure not all are. I think some confessions were beaten out of them and they said what the military wanted to hear just to make it stop.

    The police have a right to hold you for a period of time before charging you with a crime. In the meantime, the court system allows for that within limitations. Eventually the police must (blank) or get off the pot. Suppose the court system, in this case, looks the other way? What’s to stop the military from doing what the police can do? The courts are allowing them to detain these people indefinitely.

    I wholeheartedly agree with you that every person should be given the right to have their day in court, regardless of the alleged offense. I merely said I don’t care what happens to the ones who were responsible, any more than I cared about what happened to Jeffrey Dahmer in prison because of the beast he was in life. I know the importance of today’s post is whether constitutional law applies here or not and it may be a while before it is all sorted out. In the meantime, the government is going to take full advantage of what they deem as their angle of the battle on interpretation. They are not about to set anyone free.

    During WWII, weren’t Japanese/Americans kept in internment camps? Weren’t they operated by the military? I think we were wrong, but I believe a precedent was set back then that the rules of military apply to civilians during certain times, like war, whether declared or not. Hmm, declared… that could take us into other areas of legalese and whether this entire argument has a leg to stand on.

  4. vijtable says:

    Truly, Dave. You are right that those responsible should be held responsible. I believe that if we are to be world leaders and a model society, then that comes from how we treat the worst and least among us. Our country failed with the internment, certainly. It also failed since the Vietnam War (I really cannot speak for before Vietnam), and woefully failed since Bush had become president. One note: police are only allowed to hold you for 24 hours without charging you. Anything beyond that is illegal.

    If the Constitution and a Declaration of Independence are the ways we measure our success at making America great, we are no better than 18th century England, and in some ways possibly worse. I don’t think any American should stand for it, which is why I wrote the above post. :)

  5. I have been saying the same thing all along. That we are a fair nation should usurp what we are doing down there. This administration, and overwhelmingly, Donald Rumsfeld, are (were, in his case) violating basic human rights. My conservative friends call me a liberal for feeling that way. For the life of me, while we have fought against (an interpretation of) communism and how it goes against “democracy,” how come these righteous stalwarts only defend themselves and no one else? Isn’t this removing the rights so many have fought and died for?

  6. Peter N says:

    I really wouldn’t want to get in the middle of your enlightened discussion, there are some smashing points being made here. I just have a couple of questions or remarks.

    Vijtable: Concerning our friend Mr. Blair; any chance we’ll get an answer to your justifiable question in your post regarding his citizenship? I agree that it would significantly weaken the arguments of the Bush administration if it turns out Gitmo has historically been considered US soil.

    As vijtable knows, my blogpost the other day concerned exactly the point made here about the time frame allowed for the prosecution to reach a decicision on whether to charge detainees or not. Some of those who have been released, have not surprisingly claimed their innocence in any atrocicites. Suppose they were right?

    Imagine sitting five years in prison just for being in the wrong place at the wrong time? The thing is: we wouldn’t even have made that argument had it not been for the fact that they have been flown out of Afghanistan and Iraq to US soil. Had they all been detained in some prison camp in remote parts of Iraq, the international community would have considered them POWs and as long as the US army abided by the Geneva convention, everyone would have been happy with the arrangement.

    Marinade Dave: The second major misjudgement by Bush/Rumsfeld/US Navy (whichever applies) concerns your last point: it will take 20 years of impeccable human rights record for US to set straight the public image of a world bully. Imagine bilateral talks between China and USA. Not so long ago USA used to complain about lack of freedom of speech and democracy in China every time they had a chance. Which was a good thing, although not really having much of an effect other than “face-lifting”.

    I can easily imagine China or any other not-so-free-and-democratic country laughing in their face if Condi ever pulled that speech now. Which is very sad because the world needed a powerful global voice that could bring these issues forward with authority. After the torture memo from Gonzalez, Abu Ghraib and Gitmo, US is not that voice anymore.

  7. I think you’re right, Peter. The Bush administration HAS made a mockery of human rights. Let’s not forget good old Dick Cheney. I think he is behind a lot of this, although, the buck does stop at the president’s desk. I think Cheney is one of the most cold hearted politicians to ever walk the halls of Washington.

    As far as it taking 20 years to mend? I don’t think so. The world is pretty tolerant of the US in this sense: They recognize the American people are not behind this and only a small fragment of the population endorses what Bush & Co. are doing. There are less than 2 years to go and he is out. Surely, the next president will strive to make amends. At least, that’s what I’m hoping for. Believe me, if an election were held today, the Democrats would take the White House AND control Congress.

  8. Ken D'Angelo says:

    Was Scott Blair born in Gitmo of US citizen parents? If so, he got his passport via jus sanguinis and not necessarily by jus soli.

    This argument is thus based on the parentage of Scott Blair, not necessarily based on where he was born.

  9. vijtable says:

    Ken, you are rightly noting something I’ve already mentioned…

    I said in my post, “The path to citizenship for someone who was born under jus sanguinis is that s/he must prove that his/her parent(s) are U.S. citizen(s).”

    So it is possible that the argument is based on parentage.

    However, if Mr. Blair did NOT need to prove his parentage, then his birth at Gitmo falls under jus solis, thus proving Gitmo to be American soil, where the Constitution (and habeas corpus) apply.

    Thus, the government’s treatment of people like Mr. Blair becomes paramount to deciding the argument.

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Idealink by vijtable is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License.
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