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"Who is going to tell us we can't and who can make us stop?"

That was a brilliant question posed by Colonel Morris "Moe" Davis in an email to me regarding the legal obligation of the United States to international law swirling around the "Terrorists" at Gitmo.

COL. DAVIS: President Bush said the Geneva Conventions did not apply to our conflict in Afghanistan with al Qaeda and the Taliban, although he said we would act consistent with Geneva's obligations.  That's one reason his administration came up with the term "alien unlawful enemy combatant" for the Guantanamo detainees.  That is not a term that appears in the Geneva Conventions and it was crafted to avoid the rights and duties afforded POWs under the Geneva Conventions.  President Obama has not done anything to refute that.  We have relied on general law of war authority to detain the enemy, which is accepted as customary international law.  Many dispute the propriety of doing so, but to date our courts have accepted that argument in some of the habeas challenges they've considered.  Whether we can continue to do so after the war that served as the basis for our law of war justification ends remains to be seen, but the big question is who is going to tell us we can't and who can make us stop?

(emphasis mine)

Col. Davis could not be more spot on!  

Many in the GOP party are frothing at the mouth and screaming that 'terrorists (prisoners) at GITMO should never be released' not even after the Afghan war is over at the end of this year.  So, who is going to tell them they can't violate U.S. laws and international laws by illegally detaining prisoners at GITMO when Afghan conflict ends?

III Geneva Convention mandates that POWs be released "without delay" at the end of a conflict and/or end of a war. The United States ratified III Geneva Convention in 1955. That is why the United States released and repatriated North Viet Cong prisoners after the Vietnam conflict ended.  The United States attributes the release and repatriation Japanese POWs at the end of WWII to the Treaty of Westphalia in 1648.

But ... but ... but ... what about the 2001 Authorized Use of Military Force (AUMF)?

Many talking heads are blathering on and on with claims that the broad, open-ended language in the 2001 AUMF for Afghanistan allows the United States to put the U.S. military into any country they please, at any present or future time we please, to kill and/or capture prisoners and hold them in GITMO or some other allied detention camp indefinitely -- indefinitely -- even after the Afghan conflict ends this year, forever and ever amen!

I think one problem with using the 2001 AUMF to justify the illegal detention of prisoners after a conflict or war is over is that the AUMF is a domestic law, not an international law.  Therefore, no other country is bound by AUMF.  However, III Geneva Convention is international law which other countries are bound by, including the U.S.

Oh! But there's a bigger reason I think the talking heads are wrong about AUMF.  Actually there are three big reasons I think those talking heads are wrong and they are:
President Bush, VP Dick Cheney and the 2002 U.S. Congress

I think it is easy to show that President Bush and VP Dick Cheney proved the talking heads are wrong when they falsified CIA intel, lied to the People and lied to Congress in order to get Congress to authorize the use of military force in Iraq in 2002.

Section 2 of the AUMF is the language that the talking heads say is so broad and so open-ended that it allows the U.S. to go into any country they please to kill and/or capture whoever the "President determines" is a "future" threat to the U.S.

September 14, 2001
H.J.Res. 64 (107th): Authorization for Use of Military Force


(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(emphasis mine)

I admit, that is some sloppy, lazy language the 2001 Congress passed into law. That said, I guaran-fcking-tee anyone reading this that if Bush and Cheney thought they could use the 2001 AUMF to invade Iraq they would have.  

They absolutely would have.  

Then they would have told anyone complaining to  "STFU, the AUMF lets us invade Iraq or any other country "the President" "determines" is "harboring" those "terrorists" who planned and attacked us on September 11, 2001."  

If Bush, Cheney & 2002 Congress thought 2001 AUMF applied to any and all countries, then the 2002 Congress would not have had to write a brand new 2002 AUMF and Bush and Cheney would not have had to falsify the 'yellow cake in Africa' BS -- they wouldn't have needed to.  But, as I say, they all knew 2001 AUMF only applied to Afghanistan - period.

You see --

IF: the 2001 AUMF for Afghanistan meant the U.S. could go into any country they please at any time they please in order to hunt down  "organizations, or persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States "

THEN: President Bush and VP Dick Cheney would not have needed Congress to write and authorize a separate 2002 Use of Military Force to hunt down "members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;"

That language in 2001 AUMF might be where Bush got the crazy idea that he is "The Decider."  

But, I cannot stress this enough: even Bush knew the 2001 AUMF for Afghanistan did not authorize him to wage conflict in any country except Afghanistan.  Even Bush knew he needed -- needed -- Congress to write a separate, brand new 2002 Authorization of Military Force to invade Iraq because the 2001 AUMF did not authorize them to do anything in any country except Afghanistan.

Also, Bush knew the 2001 AUMF did not authorize the U.S. to detain prisoners indefinitely -- especially not after the conflict in Afghanistan is over -- which is why Bush released almost 600 GITMO prisoners under his watch.

Bush nor Cheney gave one hoot about any prisoner and especially not GITMO prisoners and that's why they allowed prisoners to be tortured.  So, if Bush or Cheney thought AUMF allowed them to let prisoners rot to death at GITMO then they would not have released almost 600 GITMO prisoners under their watch.

So, as I said, I think it's easy to show that President Bush, VP Dick Cheney and the entire 2002 US Congress proved that the 2001 AUMF is not as broad and not as open-ended as today's talking heads are claiming.

Colonel Davis went on to say:

COL. DAVIS: I think that when history looks back at the U.S. in the post-9/11 period it will not be flattering to any branch of government.  For too long Congress was willing to wash its hands of the matter and let the President do whatever he pleased without interference or meaningful oversight.  More recently, however, some members of Congress have used Guantanamo and detention for political reasons that have little if anything to do with what the law requires or what's in the genuine interest of U.S. national security.  Too often it's "if Obama's for it, we're against it" just to pander to those who pray for Obama to fail.  If there is any measure of credibility in the notion that the U.S. is a "light unto the world" or a "shining city on a hill" for others to emulate then we need to live up to our obligations and not use "American exceptionalism" as an excuse to carve out an exception when we do something we'd condemn anyone else for doing.  At a minimum, if we are not going to live up to our obligations we ought to have the integrity to renounce them.  My concern is that in too many areas ... targeted killing in the sovereign territory of other nations, drone strikes conducted by a civilian agency, indefinite detention, failed military commissions, impunity for torture ... we have set precedents we are not going to like when others use them and cite us as their justification.

(emphasis mine)


Again, Col. Davis is spot on!  

History will not look kindly on any branch of government post 9/11. Our grandchildren and great grandchildren will think all branches were filled with inept, lazy so-and-so's who could not even write a coherent AUMF.  And our grandchildren will wonder why the hell the People, the Congress and President Obama has/did let President Bush and Dick Cheney get away with war crimes.

All branches post 9/11 have extinguished any "light" we provided the world and -- post 9/11 -- the branches of government have enacted laws and upheld laws that have made us become the enemy we claim to loathe as we now allow torture, illegal surveillance, drone murders without Due Process and may even illegally detain prisoners after a conflict is over. Simply put, post 9/11, we suck.  

As we all know, many in the GOP had a mental break-down and regurgitated bizarre non-sense when President Obama announced great news: U.S. POW Sgt. Bowe Bergdahl is released.

Today's GOP are so paranoid, delusional and just flat out full of crap that they want to illegally keep prisoners who were captured during the Afghan and Iraq conflicts indefinitely and never release or repatriate them after the Afghan conflict ends this year.  That is horrible.  And, that actually is something the real Communist (Stalin) did try to do when he was not initially willing to release and repatriate Japanese POWs after WWII.  Now I call that irony.

I'll tell you something else that is ironic.  In the 2001 AUMF, Congress gave "the President" -- only the President -- authorization to be sole decider of who the hell the U.S. will kill -- kill -- without Due Process, yet, many of those same members of Congress, both parties (Diane Fienstein), are bitching that "The President" decided that releasing five GITMO prisoners was worth saving the life of one 28 year old POW United States Military Sergeant.  SMFH!  

The bottom line is:
Actions of President Bush, Dick Cheney and the 2002 U.S. Congress proved that the 2001 AUMF only applied to Afghanistan  -- not Iraq, not Iran, not Yemen, not Somalia -- but only Afghanistan. Therefore, once the conflict, hostilities, end in Afghanistan  at the end of this year, the 2001 AUMF expires.  And, for that reason, once the conflict in Afghanistan ends in December 2014, the United States must legally adhere to the Treaty (Geneva) it ratified in 1955.

Geneva, Convention (III) - Treatment of Prisoners of War.
"... prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."
Seriously, who is going tell Congress they must obey U.S. laws and release and repatriate the prisoners at Gitmo?  Who is going to tell them to stop screaming their illegal insanity?  

Who is going to tell Congress they cannot violate U.S. laws and/or International laws after the Afghan conflict ends this year and who can stop them from violating those laws?

Originally posted to TeamSarah4Choice on Wed Jun 04, 2014 at 07:18 AM PDT.

Also republished by Community Spotlight.

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