by Susan Stamper Brown
Americans may be less safe today because the Obama administration made the decision to circumvent the Constitutional treaty ratification process by mandating that his administration would begin compliance with Article 75 of Additional Protocol I (API) to the 1949 Geneva Conventions “out of a sense of moral obligation.”
API, an unsanctioned addition to the Geneva Convention that was unequivocally rejected by previous administrations, outlines fundamental rights or guarantees for captives taken in an international armed conflict. This addition sounds nice in Dreamland, where it’s okay to interchange the words “international” and “national” without consequence. But, where the rest of us live, the word “international” is quintessential. The Supreme Court determined (Hamdan vs. Rumsfeld) that America is involved in a non-international armed conflict with al-Qaeda and the Taliban, making Article 75 moot.
We were led to believe we were having an intelligent Guantanamo Bay (Gitmo) detainee discussion when the administration threw in some non sequitur about Article 75. Introducing Article 75 into the conversation was misleading to those who take words at face-value, confusing to those who dare to delve below the surface and alarming to those who understand our safety is in the hands of some who dangerously dance outside the confines of common sense.
In a March 7, 2011, White House fact sheet titled “New Actions on Guantanamo and Detainee Policy,” the administration suggests, “Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel.” Let me get this right. America is involved in a non-international armed conflict with an indefinable enemy that use woman and children as “human shields,” blow themselves up on a regular basis, behead their enemy using dull swords – and we should believe our military will be safer? Secretary of State Clinton said it’s “not about who our enemies are, but about who we are.” We are a lot of things, but Americans aren’t stupid.
Although the administration admits reservation regarding certain unnamed aspects of API, it is fair to question if acceptance of a portion of API, namely Article 75, is in reality acceptance of the whole. Voicing these concerns in a March 14, 2011column, Senator Jon Kyl, R-Ariz warned that the adoption of Protocol I “would permit terrorist groups to receive POW privileges…give terrorists advantages over conventional forces and put civilians at greater risk and hamper American combat operations.”
What President Ronald Reagan deemed as “fundamentally and irreconcilably flawed”, Obama regards as an opportunity to get his way. This decision, veiled behind the sugary words of “reaffirming America’s commitment to humane treatment of detainees,” seems more like an Executive Branch temper-tantrum.
Back in January, outraged over the Congressional defunding of the transfer of Guantanamo Bay (Gitmo) detainees to the US for trial, Obama vowed he’d “seek repeal of these restrictions.”
Under a section of the same White House fact sheet titled “Continued Commitment to Article III Trials,” (but should have been titled “Obama Gets What Obama Wants”) the administration complained about the restrictions that Congress wisely passed after the disastrous outcome of Obama’s first attempt to offer the first Gitmo detainee the luxury of a civilian court trial on American soil. Originally charged with 285 counts (including 224 murder counts) in connection with the Kenya and Tanzania U.S. Embassy attacks, Ahmed Khalfan Ghailani, was acquitted of all murder and terrorism charges save one – “conspiracy to destroy government property” – a victory for a cold-blooded terrorist and a travesty for the victims’ families.
It is apparent this administration is beholden to an ideology that legitimizes, as Congressman Allen West (R-FL) aptly describes them, “non-state, non-uniform belligerents who do not openly declare their arms.”
The after-shocks of this tit-for-tat decision will extend far beyond the secure walls of Gitmo and out into the battlefields – where our brave American soldiers who are already bound by the Geneva Convention – will be also be bound with one arm behind their backs – to fight a now-legitimized enemy that has neither the intestinal fortitude to be identified in uniform nor the moral integrity to act within Geneva Convention guidelines.