May 29, 2007
by John Sebastian

Guantanamo Bay and the U.S. Constitution

Article 1, Section 8 lists the Powers of the Congress of the United States.  This Section begins with the words, "The Congress shall have the Power To."

Article 1, Section 8, Clause 9 assigns to Congress the authority "To constitute Tribunals inferior to the supreme Court;" 

This authority does not reside in the Executive branch.  As presently constituted, the 'enemy combatant/detainee tribunals' are unconstitutional unless Congress has agreed to them.

Article 1, Section 8, Clause 10 assigns to Congress the Power "To define and punish Piracies and Felonies on the high seas, [and for] Offences against the Law of Nations;"

"The Law of Nations modifies the intercourse of independent commonwealths in peace, and prescribes limits to their hostilities in war. It prescribes, that in peace nations should do each other as much good, and in time of war as little harm, as may be possible, without injuring their own proper real interests."

"The laws of nations, in short, establish that principle and rule of conduct which should prevent the strongest nation from abusing its power, and induce it to act justly and generously towards other states, upon the broad principle that true happiness, whether of a single individual or of several, can only result from each adopting conduct influenced by a sincere desire to increase the general welfare of all mankind. (Post, § 13, 14; Mackintosh, Dis. 3, 4; Montesq. de l'Esprit des Lois, liv. 1, c. 3; and see 1 Bla. Com. 34 to 44; 4 Bla. Com. 66, 67.)"

Source:
http://www.constitution.org/vattel/vattel_pre.htm#(01)

(Article Continues Below)

Article 1, Section 8, Clause 11 assigns to Congress the Power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"

This authority does not belong to the Executive branch of the U.S. Government.  This calls into question all actions taken by the Executive branch with regard to the treatment of "enemy combatant/detainees".

Article 4, Section 3 states that, "The Congress shall have the Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States;" 

Congress has the Constitutional authority to determine how United States Territories are utilized. Guantanamo Bay is a "Territory" of the United States.

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John Sebastian [send him email] is a freelance writer and Constitutionalist.