By GottaLaff
Here is an op-ed that explains further:
The casual use of the word "war" has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war -- and thus trigger the panoply of the government's military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war. [...]There is much, much more here.
]T]he [Supreme] court declared that a formal declaration of war is the legal prerequisite to the government's use of the tools of war. The federal government adhered to this principle of law from World War II until Bush's understanding of the Constitution animated government policy.
The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less. [...]
The framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty or property from any person without the intercession of a civilian jury to check the government's appetite and to compel transparency and fairness by forcing the government to prove its case to 12 ordinary citizens. Thus, the 5th Amendment to the Constitution, which requires due process, includes the essential component of a jury trial. And the 6th Amendment requires that when the government pursues any person in court, it must do so in the venue where the person is alleged to have caused harm. [...]
We have a "war" on drugs; can drug dealers be tried before military tribunals? We have a "war" on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared "war" on Fox News. Are Glenn Beck, Bill O'Reilly and I and my other colleagues in danger of losing our constitutional rights to a government hostile to our opinions? [...]
Only unflinching public fidelity to the Constitution will preserve the freedoms of us all.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel. His next book is "Lies the Government Told You: Myth, Power, and Deception in American History."
******
All my previous posts on this subject matter can be found here; That link includes one specific to only Fayiz al-Kandari's story here. Here are audio and video interviews with Lt. Col. Wingard, one by David Shuster, one by Ana Marie Cox, and more. My guest commentary at BuzzFlash is here.
Lt. Col. Barry Wingard is a military attorney who represents Fayiz Al-Kandari in the Military Commission process and in no way represents the opinions of his home state. When not on active duty, Colonel Wingard is a public defender in Pittsburgh, Pennsylvania.
If you are inclined to help rectify these injustices: Twitterers, use the hashtag #FreeFayiz. We have organized a team to get these stories out. If you are interested in helping Fayiz out, e-mail me at The Political Carnival, address in sidebar to the right; or tweet me at @GottaLaff.
If you'd like to see other ways you can take action, go here and scroll down to the end of the article.
Then read Jane Mayer's book The Dark Side. You'll have a much greater understanding of why I post endlessly about this, and why I'm all over the CIA deception issues, too.
More of Fayiz's story here, at Answers.com.
.jpg)