What I think about Guantanamo
I think President Obama has been thrown off-stride by the Karl-Rove-orchestrated assault on his perceived strengths (a very Clausewitzian and typical Rove strategy if you follow him).
With Guantanamo Obama had hoped to solve the issue by attrition and by devaluing the issue to the point where he could wrap it up with spending little or no political capital.
But now the issue is forced by the hunger strike, now in its official 100th day.
I think he must spend capital on this and if he does he will be rewarded.
The legal basis for holding these guys without charge or trial is that they are taken under the Hague and Geneva conventions in a war zone.
This runs into problems right off the bat because you are not supposed to exfiltrate prisoners of war or interned civilians from whatever country they were captured in except to return them to their country of origin.
For the same reason, the idea of returning these folks to some third country should be a non-starter.
Here is what is should be done.
Continue to hold military tribunals, but only for the purpose of status determination: prisoner of war or interned civilian.
Those who were captured under arms, had a command structure, some kind of uniform, may be found to be prisoners of war. The remainder of these folks will be found to be interned civilians.
Prisoners of war cannot be charged for fighting the enemy so long as they themselves obeyed the laws of war. The UN has also recognized the right of civilian people under arms to fight for national liberation, but that is not as well-ensconced in international law as is the rights and responsibilities of nation-states.
Civilians can be charged with criminal offenses, but they should be tried in theatre by local judges under local law (which can't be done since they have been illegally exfiltrated out of theatre) or else in their country of origin or by an international tribunal. The military commissions cannot be allowed to act as judge, jury and executioner. When military tribunals have been allowed to exceed their proper scope in the past, such as during the Civil War, the result has not been pretty.
As soon as is practicable, these men must be returned to their countries of origin, whether or not their tribunal proceedings are closed or complete.
Our intelligence should keep tabs on these guys in an open manner but otherwise let them lead their lives as best they can. It is very much in everyone’s best interest to help these folks with compensation for time during which they were improperly held or mistreated, and they all should be given enough to live and to receive medical and psychological assistance on an ongoing basis.
We are going to pay a price for letting these guys go. Here's 166 guys who are going to be very messed up and not feeling like Uncle Sam is their friend. That is the price we will pay for kidnapping, assassination, rape, torture, war crimes, running concentration camps, and 10 years of low-intensity conflict, which is what we call terrorism when we do it.
But you have to consider there’s already a lot more than 166 guys out in the world who don’t like the US.
By bringing this very real scandal front and center and highly publicizing the commissions and the procedures to return the prisoners of war and interned civilians, the ginned-up Rove scandaloids will be driven off the TV and front pages perhaps indefinitely.
What’s the reward? The issue is so corrosive of the moral authority and therefore of the power of the United States. Quite simply, it makes the US the bad guys and that’s not good. Time to end a bad situation which only festers as time goes on.
Copyright © 2013 Henry Edward Hardy
This was written in response to a thread on the facebook group, The Constitution of the United States of America, titled, Do you think a President should have to serve in the military because he is Commander in Chief?
To ask, “Do you think a President should have to serve in the military because he is Commander in Chief?” is completely the wrong way of posing this question. The proper way of framing it is, “Do you think that the Commander-in-Chief should always be a civilian, elected President, in order to secure a democratic republic from military control?”
As James Madison said: “In time of actual war, great discretionary powers are constantly given to the Executive Magistrate. Constant apprehension of War, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive, will not long be safe companions to liberty. The means of defense against foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.” 
This principle of civilian control has been and remains the fundamental precept upon which the command and control of the US Armed Forces depends and from which it draws its legitimacy:
“From the birth of democracy in ancient Greece, the idea of the citizen-soldier has been the single most important factor to shape the Western way of war. In a democracy, combatants bear arms as equals, fighting to defend their ideals and way of life. They are citizens with a stake in the society they have vowed to defend. They do not fight as mercenaries, nor are they guided by coercion or allegiance to the whims of a dictatorial leader. Rather, their motivation stems from a selfless commitment to an idea that far exceeds the interests of any individual member of the society. For the armed forces officer of the United States, this ethos began with the militiamen who defended their homes, secured the frontier, and won a war of independence against the most formidable military power of that era. The American military tradition has since been governed by a strict adherence to the primacy of civilian control and, within that framework, has continued to champion the role of the citizen-soldier as the defender of the nation’s ideals.” 
 Max Farrand. 1911. Records of the Federal Convention of 1787. New Haven: Yale University Press. 1:465. Civilian control of the military
Copyright © 2010 Henry Edward Hardy