Closing Guantanamo: The Inconvenient Legal Truth
by Kenneth Brooten
The Counter Terrorist
It requires not the Wisdom of Solomon but the dexterity of Houdini to disentangle the National Security, Legal and Logistical web spun by President Barack Obama when he signed three Presidential Executive Orders on January 22, 2009.
President Obama's three Executive Orders (EO's) were widely reported by the media only as mandating the closure of the detention facility at Guantanamo Bay, Cuba within one year. However, even a cursory review of the first EO 13941, clearly demonstrates that individually and collectively President Obama's three EO's have left unanswered multiple significant and complex issues of National Security and Federal and International Law which extend far beyond closing the detention facility at Guantanamo Bay.[i]
Central to a fundamental understanding of the complexities of the effect of President Obama's three Executive Orders requires an understanding of President George W. Bush's prior EO 13440 which was Revoked in its entirety.[ii]
Presidential Executive Orders of the nature of the four Executive Orders which are the object of our analysis have the full force and effect of Federal Law. However, instead of being enacted by the Congress, they are Federal Law by fiat of the President as an exercise of Presidential power. Our analysis of the four EO's at issue will begin with a brief summary and substance of each EO.[iii]
EO 13941, Ensuring Lawful Interrogations, signed January 22, 2009 , specifically:
· Revoked in its entirety EO 13440, signed by President George W. Bush on July 20, 2007 .
· Mandated that Army Field Manual FM 2-22.3 Human Intelligence Collector Operations and its predecessor FM 34-52 are the standards to be employed in Interrogations by the Military and any agent of the United States Government.
· Utilized the exact same language for defining Common Article 3 of each of the Geneva Conventions that had been used by President Bush in EO 13440; however EO 13491 does not contain the limiting language used by President Bush when he construed Common Article 3. Common Article 3 is often referred to as the "Mini Geneva Convention" which binds all signatories of the Third Geneva Convention to certain minimum standards for treatment of Prisoners of War.[iv]
· Defined Torture citing to the exact same Federal Statutes and International Conventions as cited by President Bush in EO 13440.
· Mandated that CIA close as expeditiously as possible any detention facilities that it currently operates and prohibits the operation of any such detention facility in the future.
· Mandated access by the International Committee of the Red Cross access to detained individuals who may be housed in CIA detention facilities abroad. [Already mandated by Common Article 3, Section 2 of the Third Geneva Convention]
· Established a Special Interagency Task Force to Review Interrogation and Transfer Policies.
EO 13492, Review and Disposition of Individuals Detained At the Guantanamo Bay Naval Base and Closure of Detention Facilities, signed January 22, 2009. President Obama again cites Common Article 3 of the Third Geneva Convention and the same four Conventions cited in EO 13440.
EO 13492 makes specific "findings" the essence of which is that the Detention Facility at Guantanamo Bay:
· Housed as many as 800 Detainees at various times.
· Declared that individuals being held at Guantanamo have the constitutional privilege of the writ of habeas corpus. [Previously mandated by the Supreme Court of the United States. See: Hamdan v. Rumsfeld, 548 U.S. 557 (2006)]
· Declared that it is in the interests of the United States that a prompt and thorough review of the factual and legal basis for the continued detention of all individuals be completed.
· Stated that new diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantanamo.
· Found that some individuals currently detained at Guantanamo may have committed offenses for which they should be prosecuted.
· Ordered that a review of each individual currently detained at Guantanamo be commenced immediately,
· Established the operation of the Review to include:
a. Consolidation of Detainee Information, requiring that all information held by the Federal Government, be assembled.
b. Determine which detainees shall be released and which detainees should be transferred.
c. Make a determination of Prosecution which requires the evaluation and the feasibility to prosecute such individuals before a Court established pursuant to Article III of the United States Constitution,
d. Make a determination of Other Disposition requiring that individuals currently detained at Guantanamo whose disposition is not achieved under previous provisions.
e. Make a determination of Transfer and select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice for the disposition of such individuals.
f. Restates Diplomatic Efforts with foreign governments as are necessary and appropriate to implement his second EO.
g. Reasserted the Humane Standards of Confinement and restated Common Article 3 of the Geneva Conventions, even though the applicability of Common Article 3 was specifically addressed by the Supreme Court of the United States in detail in Hamadan v. Rumsfeld, 548 U.S. 557 (2006).
h. Summarily Ordered all proceedings before Military Commissions including the filing of further charges and all proceedings pending in the United States Court of Military Commission Review be halted immediately.[v]
EO 13493, Review of Detention Policy Options, Signed January 22, 2009 .
· Establishes a Special Interagency Task Force on Detainee Disposition
· Identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.
· Provides for the membership of the Special Task Force.
Essential to an analysis of President Obama's three Executive Orders is an understanding of the scope and content of President Bush's EO 13440, Interpretation of the Geneva Conventions Common Article 3, as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, Signed July 20, 2007.
EO 13440 is comprehensive, meticulously detailed with detailed Findings which include multiple specific references to various International Conventions and Treaties as well as US Federal law including Federal Criminal Code: EO 13440:
· Narrowly interprets and construes Common Article 3 of the Geneva Conventions and does not bind the United States to accept the entire Third Geneva Convention as being applicable to Detainees at Guantanamo Bay;
· Specifically forbids torture as defined by 18 USC 2340 and other specific Federal Statutes and sets forth U.S. Compliance with multiple other specific International Treaties relating to Torture, Humane Treatment of Prisoners and fundamental rights of Prisoners as are set forth in the Third Geneva Convention Common Article 3.
· Applied the statutory definitions contained in the Military Commissions Act and the Detainee Treatment Act of 2005 as those Laws relate to acts constituting Torture to assure that no action would constitute a violation of Common Article 3.
· Allowed interrogation practices as are determined by the Director of the Central Intelligence Agency based upon professional advice, to be safe for use with each detainee with whom they are used,
· Required the Director of Central Intelligence Agency to issue written policies to govern the program including guidelines for Central Intelligence Agency personnel;
· Set forth detailed requirements to monitor the Interrogations to ensure the safety of those Detainees who were in the enhanced interrogation program and
· Mandates compliance with applicable International Treaties and Federal Laws.
· Incorporates all of the essential Holding of the Supreme Court of the United States in Hamdan v. Rumsfeld, however, not once in any of his three EO's does President Obama cite the Holding of the Supreme Court in Hamden, as determining the right of Detainees to file a Petition for the Writ of Habeas Corpus. Instead President Obama makes it appear that he is granting the Guantanamo Detainees the right to the Writ of Habeas Corpus under his Executive Order(s).
The detailed specific provisions of each of President Obama's three EO's as well as the summary of President Bush's single comprehensive EO provide the foundation with which to begin our legal analysis.
The primary legal issue relates directly to the legal authority of the President. The core issue may be succinctly stated: "What is the Scope of Presidential Power absent a Formal Declaration of War?" The summary total Revocation of EO 13440 by President Obama on January 22, 2009 left large legal gaps in multiple areas relating to the extent of the application of the Third Geneva Convention and gave rise to other legal issues which directly affect our National Security. One example is the ongoing Military Tribunal proceedings. Those proceedings were specifically mandated by the Congress when it enacted the Military Commissions Act of 2006. President Bush's EO 13440 also incorporated the essential holding of the Supreme Court of the United States in Hamdan v. Rumsfeld. President Obama mandated the closing of the detention facility at Guantanamo Bay and summarily stopped all proceedings before Military Commissions even though those Commissions were acting in accordance with the specific authorization of the Congress who had enacted a Federal Law specifically authorizing such Commissions. The Military Tribunals were mandated by the Congress to be consistent with the Military Tribunals established both during and following WWII to try eight "Nazi Saboteurs" after their capture in 1942 and after the War, those accused of being "War Criminals." Multiple individuals were tried before U.S. and International Military Tribunals including Nuremberg, Tokyo and Manila. The Military Commissions Act is in full compliance with long and well established principles of International Law codified in the Third Geneva Convention. Thus, President Obama in EO 13492 summarily stopped legally constituted Military Tribunal's from proceeding without a repeal of the Military Commissions Act of 2006 or a Joint Congressional Resolution authorizing such action. Thus, President Osama's action halting all proceedings before Military Tribunals gives rise to major legal issues relating to the Scope of his Presidential Power to stop Military Tribunal proceedings that had been mandated by a valid Act of the Congress. The concomitant issue arising from the total revocation of EO 13440 and stopping proceedings in accordance with the Military Commissions Act of 2006, directly relates to the Constitutional Doctrine of Separation of Powers. Notably, even though the language of EO 13492 is clear and Halts all proceedings before Military Commissions, without Amending EO 13492 President Obama has subsequently authorized some proceedings to resume before Military Commissions. Most legal scholars would at a minimum have Amended. EO 13492 to re-authorize Military Commissions to proceed as mandated by the Congress. No amendment to EO 13492 has been made.
Second, multiple major international legal issues arise when we consider that some of the detainees at Guantanamo were captured by or with material assistance by "Coalition partners" Those Allied sovereign states who have committed personnel and material to the "War on Terror" in Afghanistan, Iraq and elsewhere have a legitimate, internationally cognizable legal interest in the disposition of such Detainees. Manifestly, not one of President Obama's three EO's, addresses that major issue. The essential legal issue is: "Are certain Detainee's Coalition Detainee's" or "Detainees of the United States?" That fundamental distinction and major international legal issue remains unaddressed and unresolved. The Rule of International Law has yet to be addressed and there are no indicia that President Obama will address the issue.
Third, the release of certain Detainees, under the long established Law of War, as codified and specifically set forth in the Third Geneva Convention, Prisoners of War or Detainees are required to be released to their home Country. By what International Legal authority may the President of The United States make the determination that Chinese Uighur Muslims should not be released to China which is their own country? Once again, the Rule of International Law is clear and unequivocal. The Third Geneva Convention in Article 109 clearly provides:
Subject to the provisions of the third paragraph of this Article, Parties to the conflict are bound to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel, in accordance with the first paragraph of the following Article. [Emphasis supplied]
Obviously, Article 109 of the Convention contemplates the repatriation of seriously wounded or very sick Prisoners while the War continues. However, where, as here, some person or entity has made a decision to release certain Detainees, one may reasonably conclude that as a matter of International Law, Detainees who are not from Afghanistan or Iraq and who are not sick or wounded and who are to be repatriated must be returned to their own country. If the United States determines that certain Detainees of Chinese origin specifically the Chinese Uighur's, four of whom have already been released to a villa in Bermuda with the remainder to be released to Palau a U.S. Possession in the Pacific, then another major legal issue arises; "By whose authority and based on what findings and determinations should four Chinese Uighur's be released without prosecution when they have been captured on a field of battle in Afghanistan, not been cleared for release by a duly constituted Military Commission? Equally clear is the long and well established Rule of International Law as codified in Article 109 of the Third Geneva Convention.
As the Detaining Power the United States is obligated by International Law to return the Chinese Detainees to their own country. President Obama has flagrantly failed to follow that Rule of Law. The essential question arises, "why?" The rule of International Law is clear and unequivocal. Prisoners are to be repatriated to their home country. There are no hostilities in China. Why, if they are to be released, should a group of Chinese Uighur Detainees apprehended on a field of battle in Afghanistan not immediately be released to their home in China? Release to a country other than China constitutes a clear violation of International Law and the Third Geneva Convention.
On June 10, 2009, another detainee, Ahmed Khalfan Ghailani a Guantanamo Detainee who is accused of helping to obtain explosives and aiding in attacks on U.S. embassies in Kenya and Tanzania in 1998, was transferred to New York for Trial before a United States Federal District Court where Ghailani has been indicted. The explosions of the two sovereign United States Embassies in Dar es Salaam, Tanzania and Nairobi, Kenya left 224 dead and thousands wounded. Ghailani was also allegedly a personal chef and bodyguard to Osama bin Laden, and received explosives and weapons training from Al Qaeda. Why was Ghailani transferred for Trial in United States Federal District Court and Not tried before the Military Commissions established by the Congress? President Obama has willfully failed and refused to follow a valid Act of Congress as it relates specifically to the trial of Ahmed Khalfan Ghailani. Why hasn't President Obama followed a valid Federal Law enacted by the Congress? Clearly, he has arrogated to himself the ability to "pick and choose" which laws he decides to follow including United States Federal Law for which there is simply no legal precedent. While the Federal Court has "Concurrent Jurisdiction," to try the case of Ahmed Khalfan Ghailani, because he was Indicted in New York, however, the Federal Court can decline to exercise its Jurisdiction under the legal theory of Forum non convenes because well established legal precedent clearly favors trial before a Military Tribunal.[vi] Military Tribunals are better suited to protect means and methods of intelligence collection and preserve and protect Classified documents while providing substantial procedural and substantive Due Process to the accused. Similarly, the Trial of Ghailani before a Military Commission is consistent with Article 102 of the Third Geneva Convention. Trial before a United States Federal District Court is not.
Fourth, Detainees at Guantanamo are confined in a detention camp which is not close to hostilities and which meets and exceeds each and every criteria set forth in Common Article 3 of the Third Geneva Convention relating to the treatment of prisoners even to the extent that Detainees now have access to Al Jezerra television. Common Article 3 is applicable because the United States is a signatory to the Third Geneva Convention. However, when President Obama revoked former President Bush's EO 13440 in its totality, he left unanswered serious questions about where to house the Detainees. Once again, the Rule of International Law as it relates to where Prisoners or Detainees may be held pursuant to Common Article 3 of the Third Geneva Convention is well settled. Article 97 of the Third Geneva Convention specifically provides:
Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein.
The specific prohibitions of the Third Geneva Convention provide the specific legal answer. We need not reason long or hard to conclude, and correctly so, that even if the Obama Administration takes the position that the entirety of the Third Geneva Convention is inapplicable, there is no legitimate legal issue that the United States is bound by fundamental principles of International Law which are codified in the specific language of the Third Geneva Convention and mandated by Common Article 3 of the Conventions. The Supreme Court in Hamdan recognized that well established fact. Thus, there are no legitimate justiciable legal issues about the transfer of Detainees to "Supermax Prisons," within the continental United States. The transfer of Guantanamo Detainees to any prison, penitentiary or convict prison is forbidden and constitutes a direct violation of the specific prohibitions of the Third Geneva Convention and violates long and well established fundamental tenants of International Law.
For an Administration that claims to embrace the "Rule of Law," President Barack H. Obama has clearly impaled himself on the horns of a National and International Legal dilemma.
Fifth, Article 102 of the Third Geneva Convention specifically provides:
A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed. [Emphasis supplied]
Article 102 specifically provides for Trials before Military Tribunals the same as for Members of the United States Armed Forces when tried for violations of the UCMJ. The recitation of Article 102 is not simply this lawyer's conclusion; it is the conclusion reached by the Supreme Court of the United States in Hamdan v. Rumsfeld, where the subject of military tribunals was discussed at length. One need not be a student of law or history to recall that both during and following WW II, International Military Tribunals tried Germans and Japanese for War Crimes and in 1942 for Sabotage. The legal right of Military Tribunals to render the Judgments at Nuremberg, Tokyo and Manila has never been successfully challenged. In fact, the Supreme Court of the United States declined to review an appeal of a sentence of death for Japanese General Yamashita whose troops killed thousands of allied prisoners and innocent civilians with his knowledge. Yamashita was tried before a United States Military Tribunal in Manila which consisted of 5 General Officers who found Yamashita guilty and sentenced him to death. SEE: In Re: Yamashita, 327 U.S. 1, (1946) upholding The Judgment of the Military Tribunal.
Why, because International Law provides for trials before Military Tribunals. The Rule of International Law is patently clear; trials of Detainees are to be held before Military Tribunals exactly like the Tribunals at Nuremberg, Tokyo and Manila following WWII. The Military Commissions following WWII as well as Military Tribunals following other Wars including most recently Serbia, formed the factual basis for International legal precedent which is codified in Article 102 of the Third Geneva Convention.
The Rule of International Law is clear and unequivocal; Detainees are not subject to Trial before an Article III Court. Article III of the United States Constitution provides the Constitutional authority for the establishment of the Supreme Court of the United States of America and all other inferior Federal Courts including Military Commissions. EO 13492 which seeks to study the feasibility of trying Detainees in United States Federal District Courts stands in direct contradiction to the specific, unambiguous mandate of Article 102 of the Third Geneva Convention. Congress passed and the President signed The Military Commissions Act of 2006. That Act, which is consistent with International Law, provides the legal matrix for trials of Detainees before Military Tribunals in accordance with International Law. The simple fact is; there is nothing to be studied! If specific acts of some Detainees are at issue, then a simple reading of the "Nuremberg Principles" provides an established set of guidelines for determining what constitutes a war crime. President Obama need not convene a Commission to reinvent the wheel. The Military Tribunal wheel was created more than 120 years ago during the Civil War and since that time, Military Tribunals still function. The Military Commissions Act of 2006 provides the proper forum and rules for trial of Detainees and is consistent with the Holding of the Supreme Court of the United States in Hamdan. Mandating a study is simply a sham!
Sixth, an analysis of President Obama's three EO's, indicates that even though they address the same subject matter they lack linkage. Linkage is a term used primarily in International legal documents to describe the interdependence and interrelationships of one provision to each and every other provision on the same subject matter. The essential purpose of "linkage" is to provide an unambiguous interpretation when construing documents which relate to the same subject matter. By way of example, the language creating "linkage" may read:
"Each and every definition, provision, Treaty, Statute and term used in this EO is intended to be construed the same in each and every other EO on the same subject matter."
Simply stated "Linkage" provides consistent interpretations and consistent Interrelationships
between EO's on the same subject matter to assure consistent interpretation.
Finally, although not discussed, each of the issues analyzed relates directly to the National Security of our Nation. How the United States adheres to long and well established Rules of International Law and how it implements International Conventions such as the Third Geneva Convention and Common Article 3 of the Third Geneva Convention determines how American troops are entitled to be treated should they become prisoners of War in the current or future wars.
The inescapable fact is that President Barack H. Obama on January 22, 2009 signed three separate Executive Orders the legal effect of which is to give rise to even greater International Legal issues which directly affect our National Security. Those issues did not exist after former President Bush defined, construed and implemented them in EO 13440 which was revoked in its totality by President Obama in EO 13941. Closing Guantanamo may satisfy political promises however, the United States will be judged not by compliance with political promises but adherence to the Law of War and Peace. Thus far, major Federal Laws have been clearly violated yes Congress continues to fail to act. The Constitutional doctrine of Separation of Powers as has our National Security have been seriously compromised.
[i] On January 22, 2009, at his second full day in Office, President Barack Obama signed Three Executive Orders. EO specifically cited Common Article 3 of each of the Geneva Conventions. Section 3 of the Executive Order mandates "The detention facilities at Guantanamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this Order.
[ii] Executive Order 13440 of July 20, 2007 Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency
By the authority vested in me as President and Commander in Chief of the Armed Forces by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force (Public Law 107-40), the Military Commissions Act of 2006 (Public Law 109-366), and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. General Determinations. (a) The United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces. Members of al Qaeda were responsible for the attacks on the United States of September 11, 2001, and for many other terrorist attacks, including against the United States, its personnel, and its allies throughout the world. These forces continue to fight the United States and its allies in Afghanistan, Iraq, and elsewhere, and they continue to plan additional acts of terror throughout the world. On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.
(b) The Military Commissions Act defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions.
Sec. 2. Definitions. As used in this order:
(a) "Common Article 3" means Article 3 of the Geneva Conventions.
(b) "Geneva Conventions" means:
(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3114);
(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).
(c) "Cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3. (a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
[(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109-366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109-148 and section 1403 of Public Law 109-163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(of the individual;
(ii) the conditions of confinement and interrogation practices are to be used with an alien detainee who is determined by the Director of the Central Intelligence Agency:
(A) to be a member or part of or supporting al Qaeda, the Taliban, or F) acts intended to denigrate the religion, religious practices, or religious objects associated organizations; and
(B) likely to be in possession of information that:
(1) could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or
(2) could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces;
(iii) the interrogation practices are determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used; and
(iv) detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.
(c) The Director of the Central Intelligence Agency shall issue written policies to govern the program, including guidelines for Central Intelligence Agency personnel that implement paragraphs (i)(C), (E), and (F) of subsection 3(b) of this order, and including requirements to ensure:
(i) safe and professional operation of the program;
(ii) the development of an approved plan of interrogation tailored for each detainee in the program to be interrogated, consistent with subsection 3(b)(iv) of this order;
(iii) appropriate training for interrogators and all personnel operating the program;
(iv) effective monitoring of the program, including with respect to medical matters, to ensure the safety of those in the program; and
(v) compliance with applicable law and this order.
Sec. 4. Assignment of Function. With respect to the program addressed in this order, the function of the President under section 6(c)(3) of the Military Commissions Act of 2006 is assigned to the Director of National Intelligence.
Sec. 5. General Provisions. (a) Subject to subsection (b) of this section, this order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.
(b) Nothing in this order shall be construed to prevent or limit reliance upon this order in a civil, criminal, or administrative proceeding, or otherwise, by the Central Intelligence Agency or by any individual acting on behalf of the Central Intelligence Agency in connection with the program addressed in this order.]
[signed:] George W. Bush
THE WHITE HOUSE,
July 20, 2007.
In contradistinction to a meticulously integrated EO by President Bush, President Obama simply stated in his Executive Order 13491: "By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
The legal distinction between President Bush's EO 13440 and President Obama's EO 13491 are clearly distinctions with multiple and major legal differences and consequences. President Bush's EO clearly follows the laws enacted by the Congress and the holdings of the Supreme Court of the United States. President Osama's 3 EO's are directly contrary to Laws enacted by the Congress and clearly ignore both Federal Law and International Law.
[iii] The Federal Register publishes and archives all Presidential Executive Orders. http://www.archives.gov/federal-register/executive-orders
Executive Orders are Law. Executive Orders are controversial because they allow the President to make major decisions, even law, without the consent of Congress. This, of course, runs against the general logic of the Constitution -- that no one should have power to act unilaterally. Nevertheless, Congress often gives the President considerable leeway to implementing and administer federal law and programs. Sometimes, Congress cannot agree exactly how to implement a law or program. In effect, this leaves the decision to the federal agencies involved and the President that stands at their head. When Congress fails to spell out in detail how a law is to be executed, it leaves the door open for the President to provide those details in the form of Executive Orders. http://www.thisnation.com/question/040.html
[iv] Common Article 3 Article 3 has been called a "Convention in miniature." It is the only article of the Geneva Conventions that applies in non-international conflicts. It describes minimal protections which must be adhered to by all individuals within a signatory's territory during an armed conflict not of an international character (regardless of citizenship or lack thereof): [Noncombatants, combatants who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, including prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment. The passing of sentences must also be pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Article 3's protections exist even though no one is classified as a prisoner of war. Article 3 also states that parties to the internal conflict should endeavour to bring into force, by means of special agreements, all or part of the other provisions of the Geneva Conventions.]
[v] Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.
The Military Commissions Act of 2006, among other things provided in Section 948b. Military Commissions Generally and specifically provided: "(f) STATUS OF COMMISSIONS UNDER COMMON ARTICLE 3.—A military commission established under this chapter is a regularly constituted court, affording all the necessary 'judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions. "(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS .—No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.
We may legally conclude that President Bush's EO 13340 provided a clear unambiguous interpretation of Common Article 3 of the Third Geneva Convention and that the Congress specifically limited the application of the entirety of the Third Geneva Convention. President Obama did not clearly limit the application of the Third Geneva Convention. He left open gaping holes in interpretation as to which rights are to be accorded to Guantanamo Detainees. President Obama clearly violated fundamental Federal Law including Federal Law. President Obama also failed to follow long and well established principles of International Law with respect to the release of the four Uighur's to a villa in Bermuda instead of returning them to their own Country of China.
vi In 1942 after the 8 Nazi Saboteurs were in custody, President Roosevelt immediately convened a Military Tribunal to try the Saboteurs. They were Tried and National Security was protected. Clearly, the Military Commissions Act covers such matters and is consistent with U.S. Precedent. Why expose means and methods in a public Trial in United States District Court which has "Concurrent Jurisdiction" by virtue of the Defendant being Indicted. The primary jurisdiction is with a Military Tribunal which has been duly established. SEE ALSO: http://www.fbi.gov/libref/historic/famcases/nazi/nazi.htm
© Kenneth E. Brooten, Jr., Bascom, Florida June 30, 2009