By John M. Rogitz

Among the ever-growing list of broken campaign promises by Barack Obama is the one where he pledged to close Guantanamo Bay within one year of taking office.  During his campaign, Obama said it was a “sad chapter in American history.”  Then, this week, the Times Online broke a story that our fearless leader has been considering transferring the remaining Guantanamo detainees to an Afghan prison currently located on a U.S. military base.

Geez, for a former law professor, this guy really doesn’t get it.  Afghanistan will provide all the same advantages as Guantanamo with none of the constitutional restraints.  What happened to all that “give them rights” talk?

The reason Guantanamo itself has been rendered useless isn’t because we are concerned about our image abroad, nor is it because of our obligations under international law.  It’s because of a bogus Supreme Court decision in 2008 called Boumediene v. Bush.

As much as I give him credit for following Bush’s lead on this one, there’s a problem with Obama’s little Afghani prison plan.  The prison is controlled by the United States because it sits on a U.S. military base, just like Guantanamo.  A closer look at Boumediene v. Bush will show why this will be a problem.

Boumediene held that Guantanamo detainees have a right to habeas corpus, which basically means they have a constitutional right to due process.  Thus, the practical effect of Boumediene was that the Bush Administration would have to give enemy combatants a detention hearing and would no longer be able to hold them at the Cuban prison indefinitely.

Under preexisting case law at the time, only American citizens held abroad or anyone held within United States territory had a constitutional right to basic due process. Before 2008, aliens held in other countries simply did not have habeas corpus under our Constitution, plain and simple.

That’s why despite what Eric Holder’s Justice Department may say, there was firm legal ground for President Bush to stand on.  Like it or not, Bush intentionally chose to put enemy combatants in Guantanamo because the government rightly would not have to obey the Constitution, and over fifty years of established case law supported him.

So Bush figured he had a pretty sweet gig going at Guantanamo, which is technically Cuban territory that is leased to us.  Then the Supreme Court came along and turned traditional habeas corpus law on its head, adopting what it called a “functional approach” to the tropical prison. The Court held that it was de facto US territory because we exercised exclusive control over it, despite the fact that the deed said “Cuba” at the top.  I bet Cubans beg to differ on that one.

Judicial restraint tells us the judiciary should not remedy existing legal deficiencies by creating new law – something that is the province of the legislature – but should only act as a reactionary institution to say what the law is, not what it should be.  The majority in Boumediene must have forgotten that.

The law often turns on technicalities.  It may seem unjust at times, but that’s the way we want it.  As an example, we’d rather let ten O.J. Simpsons go free than see one innocent man be sent to jail for the rest of his life.  The Court should not ignore a “technicality” like Guantanamo being Cuban territory just because they would have to render what they feel is an unfair result.  Judicial activism as it may be, it doesn’t change the fact that after 2008, the U.S. military base at Guantanamo was subject to the same constitutional restraints as any other US prison.

Now back to the Times Online story about the Afghan prison.  Deep down, Obama knows what he’s doing.  Despite all his anti-war rhetoric, he is considering moving enemy combatants back to the Middle East so that we can continue to detain them indefinitely and subject them to harsh interrogation tactics.  We also won’t have to give them access to Federal courts if they are held there.  That is, until a new terrorist being held in the Afghanistan prison makes his case to the Supreme Court.

So I was wrong before when I said President Obama doesn’t get it.  He obviously does.  Maybe the administration hinted at the Afghan prison option this week because they knew only foreign news outlets like the Times Online would pick it up.  After all, we were pretty darn preoccupied with health care.  But for all the heat President Obama has taken from the right over his domestic policy, at least we can agree with him on this one.

COPYRIGHT 2010 JOHN M. ROGITZ