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Insubordination at Guantanamo By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, January 17, 2008


On January 13, 2008, Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, visited the Guantanamo Bay Naval Base in Cuba, the detention facility that holds hundreds of enemy combatants, including some of the worst of the worst terrorists.

Mullen is the seventeenth chairman in a line beginning with the appointment of General of the Army Omar N. Bradley in 1949, and which included, like Bradley, other combat-tested military figures.

While at Guantanamo, Mullen—a subordinate of the Commander-in-Chief, President George W. Bush—gratuitously opined that “I’d like to see [the Guantanamo detention facility] shut down.”

Predictably, the national and international press had a field day reporting that the highest-ranking military officer in the United States wanted Guantanamo closed, which would necessarily mean that its enemy combatants detainees would be brought to the continental United States.

Most Americans have not the slightest idea about the Chairman’s job description.  By statute, he is the principal military advisor to the President of the United States, relaying advice the Chairman obtains from other members of the Joint Chiefs and senior military commanders.

As a general (in the Army, Air Force, Marine Corps) or Navy Admiral, the Chairman of the Joint Chiefs has no military command, no legislative power, no judicial standing, no diplomatic status, and no political policy role.

Under Department of Defense Directive 5100.1, the Chairman’s responsibilities are virtually all administrative.  A close reading of that lengthy directive, despite its broad language, does not suggest a command, legislative, judicial, diplomatic, or political policy role for the Chairman of the Joint Chiefs.

Yet questions about the status and future of Guantanamo fall into all of those categories.  For example: Could the military defend Guantanamo?; Shall Congress legislate termination of the facility?; Do the courts have jurisdiction over what occurs there?;  Are State Department concerns to be considered?;  Is there a separation of powers issue, arising out of shared executive/Commander-in-Chief and legislative foreign and national security powers?

To put the point bluntly, none of these questions, and the many others like them, are any business of the Chairman of the Joint Chiefs of Staff.  Admiral Mullen, whatever his other powers and responsibilities as Chairman, unarguably went overboard in offering his gratuitous dictum about a subject that rightly, and statutorily, falls within the purview of others.

That was bad enough, but Mullen’s insubordination was compounded by the implications inherent in his taking a giant step beyond his pay grade.

The Associated Press reported that although Mullen acknowledged that “a closure decision was not his to make,” and that some of the detainees are “high security risks,” still “he favors closing the prison . . . as soon as possible because he believes negative publicity worldwide about treatment of terrorist suspects has been ‘pretty damaging’ to the image of the United States.  More than anything else it’s been the image—how Gitmo has become around the world, in terms of representing the United States.  I believe that from the standpoint of how it reflects on us that it’s been pretty damaging.”

These statements reflect several highly undesirable qualities in America’s highest-ranking military officer.

First, Mullen uncritically accepts as a given the “negative publicity,” without regard to its propagandistic falsity and without any acknowledgment that the Guantanamo detention facility has been, and continues to be, a crucial component of our war with Islamic terrorism.

Equally, his reference to “worldwide” necessarily embraces the media (often state- controlled) of countries that are our enemies in this war.  It is difficult to believe that the Chairman of the Joint Chiefs is concerned with “negative publicity” emanating from theocracies like Iran, one-party states like Egypt, dictatorships like North Korea, and virtually every nation in Africa—to name but a few “worldwide” players.

Mullen’s uncritical concern with the “treatment of terrorist suspects” is unworthy of comment, except to observe that the detainees are treated no worse than state and federal inmates within the United States, and in some respects even better.

“Pretty damaging to the image of the United States.”  That Mullen would care about our “image” in the eyes of those seeking to destroy us, and those watching from the sidelines, bespeaks of a man lacking independent judgment and concerned more with the feelings of others rather than one rooted in reality and an understanding of America’s nobility and strengths.

Indeed, Mullen’s concern with our worldwide image ignores the grave consequences of closing Guantanamo and dumping its flotsam and jetsam onto American shores and into our criminal justice system.  In short, doing so would turn enemy combatant terrorists into mere felony defendants, making them the subjects of solicitude from the hard-left ACLU to the four-and-a-half justice liberal bloc on the Supreme Court.

Once it would have been hard to believe that a Chairman of the Joint Chiefs of Staff could carry the water for anti-American terrorists.  Indeed, it was unimaginable that General of the Army Omar N. Bradley, when visiting a stockade holding German POWs, would have recommended that they be put into the United States criminal justice system—a system that would have afforded the SS and other Nazis the protection of the United States Constitution.

Yet that danger is what we face now, and Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff of the United States, has aided and abetted it.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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