More than a year has passed since Obama was elected. Since that date, we have seen a distinct contrast between candidate Obama and Commander-in-Chief Obama. Candidate Obama seldom failed to rail against the war in Iraq - the “war of choice” - and seldom failed to burnish his national security credentials by railing against bin Laden. As he said repeatedly before his election, “I have no greater priority than taking out these terrorists who threaten America, and finishing the job against the Taliban. I will never hesitate to defend this nation!”
President Obama has now hesitated for a full three months since General McChrystal requested more troops in Afghanistan and said failing to do so risked an outcome that “will likely result in failure.” A Commander-in-Chief must be decisive in time of war. The lives of our troops, the destiny of our nation and that of the free world is at stake.
David Guinn, my Constitutional Law Professor at Baylor Law School, used to say, “The Supreme Court is the only federal court in the country that does not owe its existence and jurisdiction to the United States Congress.” The U.S. Constitution in Article I, Section 8 says that the Congress shall have the Power “to constitute Tribunals inferior to the supreme Court.” Article III, Section 1 says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
A simple reading of the Constitution led many of us to believe that when the Bush administration put together a military tribunal plan without Congressional input, the Supreme Court would, as it did, find that such creation was not within the power of the Executive Branch. Congress later passed the Military Commission Act of 2006 and then amended it this year so that the horrid name “enemy combatant” could be changed to a kinder, gentler term -- “alien unprivileged enemy belligerent.”
Those alien enemy belligerents are defined as “unprivileged” because they do not qualify under the terms of the Geneva Conventions for their protections. As applied to the guests at Guantanamo, “unprivileged” means that they probably did not wear a uniform or identify themselves as being at war before they planned the attack that killed more than 3,000 innocent people in New York, Pennsylvania, and Washington, D.C.