First You Say You Do, And Then You Don't

Then you say you will, and then you won't. You're undecided now, so what are you gonna do? So asked the Ames Brothers, Louis Armstrong and Ella Fitzgerald in song. None of them had met Waffler-in-Chief Barack Obama. Obama promised hope and change, and what we got was dopes with the mange. This is not only the weakest administration since Carter's, but it is also the least decisive.

Among the many barbarities of the Bush administration that the Obamassiah saw and promised to change was the horror of detaining enemy combatants at the Guantanamo Bay detention center. We should be coddling mass murderers at home, in our civilian social welfare courts, not holding them indefinitely outside the mainland United States, he said. One of his prime planks was that as soon as he finished the first three days of his administration stopping the polar ice caps from melting and giving everyone free medical care, he would close the Guantanamo facility forthwith.

Well, here we are, over three years later and Guantanamo remains open. First Obama's genius attorney general decided he would start bringing the terrorists into civilian courts in our major cities, starting with New York and mass murderer Khalid Sheikh Mohammed. That didn't go over well with New Yorkers. So the next tack was to buy off a few legislators in Illinois and a couple of other states where the terrorists could be moved so they would at least have HBO while suffering their false imprisonment. That was not a notable success, either.

After releasing a few dozen detainees who had not been proven beyond a reasonable doubt and to a moral certitude to have specifically murdered specific civilians and US military on specific battlefields in specific locations, Obama decided to "go with what we know." Guantanamo remains open, and we'll soon be seeing the released terrorists back there since the vast majority are re-offending. It's almost possible to give Mr. Harvard Law Review credit for recognizing reality and practical necessity. But I didn't just fall off the turnip truck, and I suspect every single thing Waffles does. There's always a hidden agenda or blind ignorance built into everything he does--often both.

Using his stooge, Secretary of State Hillary Clinton, Obama announced that detention would continue as in the past, but (and this is a big one) "out of a sense of legal obligation (to whom?), the United States will adhere to the set of norms in Article 75 of Protocol I in international armed conflicts." Sounds pretty reasonable, doesn't it? Well, don't bet the farm on it. This is another unilateral surrender of American sovereignty and rule of law, by executive fiat, to the United Nations and the International Criminal Court.

You see, Protocol I has been brought before the Senate (it's part of a treaty, after all) twice, and soundly rejected by both Republicans and Democrats. Presidents from Reagan through Bush II, including Bill Clinton, have rejected the concept of implementing Protocol I. Obama has used the cover of reinstating military tribunals at Guantanamo (a popular favorite) to hide his gutting of the process with executive concessions to the enemy.

What is Protocol I? I'm glad you asked. Article 75 of Protocol I is a 1977 amendment to the Geneva Conventions. Unlike its predecessors, this Protocol does not directly address humane treatment of prisoners of war, but rather goes off on flights of fancy and typical UN new age blather about "human dignity" and other vague and ambiguous philosophizing. Its feel-good wording forbids "outrages upon personal dignity, in particular humiliating and degrading treatment." Getting caught murdering civilians and shooting American service men and women while in civilian garb (a violation of the Geneva Conventions in itself) is pretty humiliating all right. Being jailed for it at Guantanamo is not exactly an ego boost either. That's going to make prosecution by military tribunal a form of humiliation for these gentle followers of the religion of peace, and could pull the ground right out from under the prosecutors. Which, I suspect, is exactly what Obama wants.

The language of the Protocol seems to echo fundamental American constitutional law as well, but don't be fooled there either. The Bush administration conducted military tribunals which allowed for testimony of witnesses under oath being taped or live-fed to the court at Guantanamo. The Protocol is much more like a civilian stricture favoring criminals in non-war trials. The wording is so vague and ambiguous as to allow for it to mean that "confrontation of witnesses" requires physical presence, thus unnecessarily taking military personnel and foreign civilian witnesses away from active battlefields to attend a trial thousands of miles away. The logistics of such a thing are a nightmare. And God forbid that we should attempt to try a terrorist who has been subjected to the ultra-humiliating ordeal of enhanced interrogation.

None of these restraints have ever been required by the Constitution, precedent or a decision of the United States Supreme Court in matters of trials of prisoners of war. Such restraints have been consistently rejected by the executive branch, and have never even come close to acceptance when presented to the United States Senate for treaty ratification. Since detention is by its very definition "humiliating," indefinite detention and/or trial by military tribunal must be doubly or triply humiliating.

The Waffler-in-Chief doesn't have the courage or the honesty to bring this matter before the Senate for ratification. Its defeat is a foregone conclusion. What's a poor boy from Chicago to do when confronted with such odds? Simple. Ignore the political and legal realities and do an end-run around the Constitution requiring Senate ratification of treaties and treaty amendments. Rather than face an overwhelmingly hostile Senate on the issue of national security, Obama has simply ordered that the authorities "voluntarily abide by it." Isn't that cute?

In the event that a terrorist detainee has been humiliated by the sight of an American soldier walking past his cell eating a ham sandwich, the ACLU, CAIR, and the heavenly hosts of "civil rights" lawyers will go into high gear. They will invoke Protocol I, and the Obama administration will order the convening authority to "voluntarily" comply and drop the prosecution.

When Protocol I was originally added to the Geneva Conventions, it was designed to protect native independence rebels from murderous oppression by colonial powers. It was not designed to protect international terrorists caught out of uniform on a field of battle carrying AK-47s and a few RPGs. But that's just a detail, isn't it? The Obama administration doesn't like details that interfere with its international social justice agenda. If implementation of the Protocol interferes with the conduct of a war, gets American military personnel and innocent civilians killed while releasing the murderers via very technical technicalities, well, that's just too damned bad.

The rules of war and their codification in the Geneva Conventions have always posited that those who do not honor the rules of warfare are not entitled to the protection of the Conventions. Protocol I interferes with that position, which is why all former Presidents and Senates have rejected it out-of-hand. But now that we have elected a President for whom the skies have opened and who has walked on water, everything is about to change. Good-bye common sense. Good-bye rules of war. Good-bye centuries of precedent. Good-bye American exceptionalism. Good-bye Constitutional restraints on executive power. Hello, Barack Hussein Obama.