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Comment by Locke1689 | Hacker News Reader

The problem is that to close Guantanamo, you need funding to a least move the prisoners to another facility. Introducing them to the justice system would require the same.

As every American should know, Congress holds the purse strings here and has denied said request. The President has no power here.

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The president can pardon them, the president can use private money to move them. The president can be on the news every night making this an issue.

> The president can be on the news every night making this an issue.

This is why the legal technicalities are irrelevant. The President has the ultimate bully pulpit, and it sure ain't getting used on Gitmo.

If the prisoners are ever released without being charged or tried (which won't happen because there's no evidence), they can each file a civil suit against the U.S. Government, each worth potentially hundreds of millions. I think this plays a role as well.

And if they are never released, then it can't happen?

Please don't tell me that it's a reasonable (legally or ethically) argument for keeping them imprisoned for decades.

It's the equivalent of keeping the neighbor's daughter in your basement because letting her out would get you into so much trouble.

Gitmo is already shockingly illegal or dangerously unethical; I don't see any interest by the US government to end it and take some of the heat for that.

As an American I've come the same conclusion. But it is a cowardly conclusion. We need to take our medicine and correct the wrong-doings of Gitmo. I don't really care if it costs a couple of hundred million dollars, that's chump change compared to the federal budget.

If a guy like Nixon can get a pardon so that the country can move forward, then we can certainly do the same for whatever ahats are culpable for setting up Gitmo in the first place. Pardon the military and politicians responsible for their misguided patriotism and then start treating these unfortunate souls like humans again as one small step towards making the US live up to its lofty ideals again.

The United States federal government cannot be sued unless it elects to allow the suit. This is not a real threat.

Look up "sovereign immunity".

Using the bully pulpit costs political capital, and nobody in the President's party wants him to waste political capital on Gitmo rather than healthcare, the economy, etc.

Something like a quarter of Americans also think the President is a crypto-Muslim. In the Wall Street Journal, today, for UN ambassador John Bolton and Bush Admin. legal adviser John Yoo are arguing that the administration signed up to a UN treaty intended to curb the global arms trade is really a cover for destroying the 2nd amendment and confiscating Americans' guns.

I am, frankly, surprised that that nobody in the House has offered articles of impeachment so far. (checks) Well almost, but it died q uiet death in the House Judiciary committee: http://thomas.loc.gov/cgi-bin/query/z?c112:H.CON.RES.107:

This is one of those cases where only Nixon can go to China.

Impeachment is surely warranted for:

1. Assassination American citizens without trial (drone program)

2. War in Libya without congressional approval.

While I agree with you, can you think of a US president that hasn't committed an impeachable offence? We almost expect them (along with prime ministers, premiers, etc) to do rotten things, once in power. They are rarely held accountable for their crimes.

#1, maybe. For #2, I'd say the majority of presidents of the past 50 years undertaken military action without approval of Congress.

Private money from where? Which account does that get drawn on?

Are you saying that the president should have authority to order spending of non-government money?

He started a war on libya without congress approval, right?

No. That was not a war.

care to explain what would you call it?

No, you don't move them. You release them, all.

You have not charged them with any crimes for the past 10 years and have not put them on trials. The problem is not the location of the prison. The problem is you are shitting on Habeas corpus.

You don't need funding. Just send them home.

They shouldn't be in any detention center – there is no legal reason to detain them.

> You don't need funding. Just send them home.

They would immediately try take legal action against the American administration through any and every international court available. Having been detained without sufficient evidence there is a case to answer, the US and their cohorts (let us not forget that several governments including ours in the UK have been shown to be complicit in rendition actions that deliberately circumvented international law) can't try ignore the issue with the "enemy combatants" and other such reasons without looking like complete hypocrites given how loud they shout when someone they care to defend is detained without what they consider to be sufficient evidence (Iran holding several naval officers for instance). Even more embarrassing: some of the people they are refusing to let go home to face/demand their own country's justice are American - they don't even want their own legal system anywhere near this.

tl;dr: Just letting them go would certainly not be cost free, financially or in terms of local and/or international reputation.

That doesn't make what's happening the right thing to do... Well, if we just summarily execute them, then we don't need to take care of them... It's the fiscally responsible thing to do. I mean, war crimes are war crimes.

I'm not arguing that it is right in any way - just that the "if we just X it won't require any cost/effort" was a slightly naive PoV. My wording may not have made that clear.

The interview in the story claims to be reported by the prisoner's lawyers. What prevents them from taking legal action now? What changes if their client is released?

By my understanding, their layers are pretty hamstrung. That they have them is something, but their arguments for presentation of evidence, fair trial, rights as stated in the Geneva convention, and so forth, are for the most part unsuccessful - usually falling to a simple response of "the national good" which comes back to the circular argument "present evidence of that risk to (inter)national interests", "we can't do that, it would be a risk to (inter)national interests".

Right now they still have "enemy combatant status" and are not in a position where they can push their defence any further or be helped by their own governments and/or legal systems (if said systems would in fact help: some would, some wouldn't). If they were freed without charge then they have a case for unfair detainment (where now any such claim will be replied to with "they haven't been charged yet, that might change") and if they were charged there would be something for them to try make a case against (where now it is someone's un-evidenced word against their's, neither side having much legal standing so the people holding the keys "win").

Then we must stop pretending to be a country of justice, and admit we're only in it for our own self interest.

If they were sent home, very many of them would be instantly killed, imprisoned or worse. For many of them, Gitmo is probably a lot better than they'd be facing at home.

Let's not forget that this comment of yours is in a thread about a guy sitting in that very same place, _asking_ to get home whatever the price would be. So the whole article that spawned this thread shows a very different position.

That totally ignores my immediate 'citation needed' urges and my shock about this opinion.

And I responded to a comment which was simply saying "Just send them home". That can't be done for "them" all.

I believe there is a wide variation within those imprisoned: some are innocent and were captured by mistake or worse (e.g. rivals were turned in by jealous neighbours, or whatever), others are actually hardened fanatics. And it is very difficult to know who is what.

And since when is being a "hardened fanatic" a crime? As long as they're not otherwise engaged in criminally acting that out, who the fuck cares what they think? If there was any actually solid evidence for anything real against them, they wouldn't be in limbo, would they.

Really?

We're "protecting them" by keeping them locked up forever without charges?

This kind of moral prevarication disgusts me. You disgust me.

Then give them a choice to go home, and if they don't want to, grant them asylum in the US. There's no reason for them to be locked up in a quasi-jail just because it's unsafe for them to go home.

What a sickening comment. I don't know anything about you beyond this one post of yours but so far you seem like a disgusting human being.

Thats stupid. You're stupid.

Possibly, but am I wrong?

As far as I understand, this is quite a real problem: no country is willing to receive most of these prisoners, except countries to which the U.S. cannot reasonably send them. Public opinion in the U.S. is hostile towards accepting them as refugees. A few have been placed to Palau, because sending them home to China would be bad and Palau is in no position to refuse such a request. Is that fair? Hardly.

In the U.S., lots of people in principle like to close Gitmo but in practice want the prisoners go to somewhere else, not settle as their own neighbours.

Sorry, I don't have good advice for what to do.

Tough shit. If they didn't want to take responsibility for these people then they shouldn't have interned them in the first place.

Also, this definitely isn't hacker news but I'm glad it was brought to my attention anyway.

Yes, you are wrong.

Refugee status was invented for such people.

It seems unlikely that Congress micromanages the budget of the Department of Justice to the degree that it could not initiate prosecution of detainees in the civilian legal system. Whether that would be a reasonable solution is debatable, but it's certainly within the President's authority to attempt.

There's always the nuclear option: threaten to release the detainees if Congress doesn't provide funding for another solution.

This back and forth has happened many times. The Defense Appropriations bills that have passed Congress have forbid the President from using fund for any of these activities.

There is no nuclear option. Veto is not an option.

What people don't seem to understand is that this isn't a failure of democracy to act: this is what the American people want. We don't care that Guantanamo is open and we'd rather see it stay open than give these people a chance at a fair trial.

We are a government by the people, of the people, and the people have spoken.

The Constitution is supposed to protect the rights of individuals from the tyranny of "the people".

The Constitution is supposed to protect the rights of Americans from the tyranny of "the people."

Alas.

this is false, FYI. Please reread the constitution. Sometimes it refers to citizens, sometimes it refers to people. The Bill of Rights applies to everyone.

The fundamental civil liberties protections of the Bill of Rights and Constitution apply to all “persons,” not just citizens. For example, every person in the United States has the right to due process and equal protection; to criminal proceedings that afford a right to counsel, a jury trial and freedom from double jeopardy; to freedom from cruel and unusual punishment; to freedom from unreasonable searches and seizures; and to freedom of speech, religion and association.

http://www.aclupa.org/issues/immigrantsrights/animmigrationg...

The Bill of Rights only applies to "people" within the jurisdiction of the American government. The Constitution is not a document that has extraterritorial force of international extent.

I'm pretty sure that jurisdiction includes people in prisons operatedby the US government.

Control in the physical military sense is not the same as legislative jurisdiction. See: http://en.wikipedia.org/wiki/Johnson_v._Eisentrager. E.g. the U.S. may have had control of occupied Baghdad, but that doesn't mean Congress had legislative jurisdiction over Baghdad.

Now, the Supreme Court has decided that Congress has de facto legislative jurisdiction over Guantanamo (in an opinion comparing the historical treatment of Scotland, in which English habeas rights did not apply, to Ireland, in which they did): http://en.wikipedia.org/wiki/Boumediene_v._Bush.

Scalia's dissent was the most legally sensible: 'Justice Scalia added that the Court's majority "admits that it cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States."[27] Justice Scalia pointed out that Johnson v. Eisentrager (where the Supreme Court decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison in China) "thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.'

But the Court stopped short of saying that foreigners in Guantanamo have the same habeas rights as U.S. citizens on U.S. soil, probably because of the strained nature of their conclusion that they had any habeas rights at all.

I don't buy that. It seems that the notion of rights endowed by the creator should apply broadly to all humans whenever possible.

Given slavery was not abolished at the time of independence, it seems likely that the writers of the constitution did in fact not intend to apply rights to all humans as broadly as possible.

What it means now? Who knows.

That's in the Declaration of Independence not the Constitution. The former is high prose. The latter is a legal document. As a legal document, it cannot purport to give rights to people outside of its jurisdiction.

The Constitution does not purport to give rights to anybody. It declares that certain things are rights and prohibits the US government from violating them.

You're confusing the declaration of independence, a fluff document, with the Constitution, a legal document. Fluffy language aside, in the Anglo-American tradition, rights derive from legal documents (or precedents), and the right to habeas corpus or a jury trial derives from the Constitution and is circumscribed the the territorial jurisdiction of the Constitution.

This is all well and good, yet doesn't matter if the majority have no interest in seeing them enforced.

The Bill of Rights doesn't use the word "Americans" or "citizens".

The Constitution details the authorities and powers that the government has. The government does not assume total power when it is dealing with non-citizens or operating overseas. The Supreme Court has ruled clearly on this in the past.

Could this be where pleasant political theory meets cold hard reality?

You, sir, speak a sad truth. But truth nonetheless.

The nuclear option is for Obama to give a presidential pardon to each of the prisoners on his way out of Office. I could respect that.

The President has the power and the obligation to publicly speak against this on the world stage.

He can also, you know, exercise HIS right to free speech and say "Speaking as Barack Obama, this shit is ridiculous."

Long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp.

http://www.salon.com/2012/07/23/the_obama_gitmo_myth/

It's continually amazing how many people, especially Americans, think that the President is a king.

> The problem is that to close Guantanamo, you need funding to a least move the prisoners to another facility

You need funding to keep Gitmo going too. I seriously doubt that would be a problem.

There is another option, keep them in Guantanamo but improve conditions to at least normal prison standards in the US. I can't believe that would be more expensive than maintaining their current regime.

Sounds like you are proposing that we ignore the fact that they never faced a legal proceeding, and just give them fluffier pillows while we hold them indefinitely.

Yet they are willing to spend millions on upgrades to the place.

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