As Andrew P. Napolitano of the Los Angeles Times reminds us, “The casual use of the word ‘war’ has led 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 [after 9/11, Congress enacted an Authorization for the Use of Military Force, as opposed to a formal declaration of war]. Only Congress can declare war – and thus trigger…the use of military tribunals to try those who have caused us harm by violating the rules of war.”

So while Team Obama was exchanging knuckle bumps as they re-branded the “war on terror,” the not-to-be-undone Republicans were conspiring as to how to block the White House order to shut down Guantanamo Bay and try the remaining 193 detainees in a civilian court of law. They succeeded. The prison that has rightly been dubbed “the GULAG of our times” and which Obama promised to “immediately close” remains open for business.

How did the Republicans force silver-tongued Barack Obama to eat his promised words? By preaching a gospel of fear from every bully pulpit.

Preaching fear

Here is former Vice President Dick Cheney, who refuses to make a polite departure from the political spotlight, launching this broadside against Obama following the failed bombing of Detroit-bound Northwest Flight 253 by one Umar Farouk Abdulmutallab:

“Why doesn't he want to admit we’re at war?” Cheney asked. “It doesn’t fit with the view of the world he brought with him to the Oval Office. It doesn't fit with what seems to be the goal of his presidency: social transformation, the restructuring of American society.”

Cheney then punched the panic button by arguing the new White House is experiencing some sort of war denial.

“He seems to think if he gives terrorists the rights of Americans, lets them lawyer up and reads them their Miranda rights, we won't be at war,” Cheney said in the statement. “He seems to think if we bring the mastermind of 9/11 to New York, give him a lawyer and trial in civilian court, we won't be at war. He seems to think if he closes Guantanamo and releases the hard-core al Qaeda-trained terrorists still there, we won't be at war.”

Time for a reality check: Cheney certainly heard the news that Obama is sending an additional 30,000 troops into Afghanistan to finish a job the Bush administration failed to do, largely because they got insanely sidetracked by an oil-blessed nation named Iraq that lay in tantalizing proximity to the Taliban (it should be added that Halliburton, the company Cheney once led, profited handsomely in Iraq as it was awarded contracts on various military and infrastructure projects). Obama has also intensified the use of highly controversial drone missile attacks in Pakistan, which even the Bush neocons were hesitant to do. So for the former US vice president to suggest that the Democrats have shelved the “war on terror” is grossly misleading.

“The only thing that’s really changed,” said a former advisor to the US Defense Department who asked not to be named, “is the lingo. Everything else is business as usual for the Obama administration.”

But where the Democrats and the Republicans radically depart ways is over the question of how to try the enemy combatants: by shadowy military tribunal or transparent civilian court?

Military tribunal or court of law?

The issue came to a head during the abovementioned failed bombing of Detroit-bound Flight 253, which snowballed into a major public relations disaster for Barack Obama and his administration.

First, there was the glaring intelligence malfunction: the would-be bomber Umar Farouk Abdulmutallab was on the US government’s terrorist watch list, but not on its no-fly list, which in itself seems preposterous. To place an individual on a terrorist watch list, and then permit him to travel on a trans-Atlantic flight to your country makes about as much sense as sending a member of Alcoholics Anonymous an invitation to Oktoberfest. We are admitting that a person is prone to a certain dangerous condition, and then we indulge him with the very thing he craves most: a large captivated audience suspended in mid-air.

But the worst blunder of the Obama administration, according to the Republicans, is that they treated Abdulmutallab, 23, as an ordinary criminal. The FBI in Detroit, after questioning the young man for one hour, proceeded to read him his rights, which included his “right to remain silent.” At this point, Abdulmutallab refused any further cooperation (recent reports indicate that he is again cooperating with authorities after his family got involved).

The Republicans jumped on this opportunity to 1. demand that Guantanamo Bay remain open (some of the captives are from Yemen, where Abdulmutallab allegedly trained with Al-Qaeda), and 2. demand that any future “unlawful enemy combatants” appear before a military tribunal, which also implies the use of “enhanced interrogation techniques,” otherwise known as good old-fashioned torture (Does this mean that the detainees on the "war on drugs" should also appear before a military tribunal?).

In other words, had Abdulmutallab been tried in a military tribunal, the argument goes, the United States would have collected much more valuable information to pursue its never-ending war on terror. But that doesn't take away the uncomfortable fact that it's unconstitutional.

“The recent decision to try some of the Guantanamo detainees…in military courts in Cuba is without a legal or constitutional bright line,” Napolitano continued. “All those still detained since 9/11 should be tried in federal courts, because without a declaration of war, the Constitution demands no less.”

It must be asked why some individuals are so obsessively determined to prevent civilian trials for these suspects, especially when the US federal courts have been very effective in delivering justice, as well as critical intelligence, in the past?

The long list of individuals ranked as terrorists that were tried in civilian court speaks for itself: The “American Taliban,” John Walker Lindh, was brought to justice in federal court, as was would-be shoe bomber, Richard Reid. Homegrown terrorist Timothy McVeigh, who blew up a federal courthouse in Oklahoma City, was tried in a federal court and summarily executed. Omar Abdel Rahman, the blind Egyptian Muslim leader who attempted to blow up the World Trade Center in 1993, is presently doing hard time in North Carolina. Finally, Zacarias Moussaoui, who was accused of conspiring to kill US citizens in the 9/11 attacks, was tried in federal court and is now serving a life sentence without parole at the Federal ADX Supermax prison in Florence, Colorado.

Yet another problem with military tribunals is that defendants have no real hope of appealing their cases, which is a crucial point given the fact that a large number of detainees of Guantanamo Bay are innocent. But it is a well known fact that a man can be broken by torture and admit to any conspiracy just to escape the torment of his captors.

"Six years in Guantanamo without charges"

Clive Stafford Smith, a human rights lawyer, testified in May 2009 before the US House Committee of Foreign Relations about three individuals being held in Guantanamo Bay whom he was assisting. One of the men, Muhammad Al Gharani, was 14 years old when he was delivered to Guantanamo Bay.

“He was 14 when he was seized in Pakistan,” Smith told the House Committee. “Today he is 21, having now spent six-and-a-half years in United States’ custody without a trial. Mohammed was born in Medina, Saudi Arabia, in November 1986. He dreamed of being a doctor, but the extreme discrimination in Saudi Arabia…cut off his options, and Mohammed was forced to leave school at 14. A friend suggested he go to Pakistan to study English and computers, and he followed this advice.”

Mohammed told Smith that not long after his arrival in Karachi, he went to a mosque at prayer time. Police surrounded the building and arrested everyone inside. Mohammed told the Pakistani police that he was in the country to study and had arrived only recently, but still they took him away. He was sold for a bounty and ended up in Guantanamo.

Smith stated that Mohammed has never been formally charged with any crime. In fact, the main allegation against him remains that he was a member of an Al Qaeda cell in London in 1998.

“The suggestion is ludicrous,” Smith said. “Mohammed would have been just 11 years old at the time – and had never been outside of Saudi Arabia.”

Smith then provided a glimpse of the conditions of Al Gharani’s cell inside of Guantanamo Bay detention facility.

“Mohammed is kept in the maximum security Camp V. He is housed in a cell that is entirely made of steel. The neon lights are on 24 hours a day. He has nothing to do all day. Mohamed has also faced totally unacceptable abuse…He has been deeply depressed and has made several suicide attempts, including slashing his wrists, trying to hang himself and running head-first into the wall as hard as he could.”

The case of the underwear bomber

This leads us back to the case of Umar Farouk Abdulmutallab, the man who is charged with attempting to bring down Flight 253 with explosives concealed in his underwear. Should the US officials have handed this young man over to the Pentagon for a military tribunal behind closed doors?

“Should the US have treated Umar Farouk Abdulmutallab like a regular street criminal and read him his Miranda rights,” asked Chris Cooper of CBS News. “Or put the screws to him until he began singing like a canary?”

The reader may have a different view, but the opinion here is: no way. After all, “canaries may sing,” but only because they are under duress. Torture has never been proven to work, and in reality it could lead intelligence officers on many wild goose chases thanks to a screaming canary who just wants to be left alone.

First, there is no doubt that Mr. Abdulmutallab attempted to ignite an incendiary device on that Detroit-bound airliner. This much is indisputable, and had it not been for the brave intervention of several passengers he probably would have succeeded. But his criminal act notwithstanding, there are many nagging aspects of this case that a military tribunal would be unprepared and probably unwilling to consider.

First, as already mentioned, Mr. Abdulmutallab appeared on several terrorist lists, yet was able to pay cash for a ticket in Ghana nine days before his flight. This would have given the authorities plenty of time to raise the warning flag. But it didn’t. Nor did a warning by Abdulmutallab’s own father trigger alarms.

Several weeks before the bombing attempt, Abdulmutallab’s father, Umaru Abdul Mutallab, a wealthy Nigerian businessman, contacted the US Embassy in Abuja, Nigeria to warn that his son had “become radicalized.” The family feared he went to Yemen to participate in "some kind of jihad."

Still, Abdulmutallab was able to board a plane to the United States.

On Christmas Day in the Amsterdam airport, passengers Kurt and Lori Haskell stated that while waiting to board Flight 253 they saw Abdulmutallab approach the ticket agent together with “a well-dressed Indian” who was assisting him.

According to Kurt Haskell, who is a lawyer, the well-dressed man told the ticket agent: “We need to get this man on the plane. He doesn't have a passport.” The ticket agent answered that nobody was allowed to board without a passport, to which the well-dressed man replied: “We do this all the time; he's from Sudan.”

The Haskell’s said they had speculated that the man was trying to pass Abdulmutallab off as a Sudanese refugee. The two men were then directed down a corridor to talk to a manager.

“We never saw him again until he tried to blow up our plane,” Haskell said of Abdulmutallab.

Another strange thing about the attempted bombing of Flight 253 is that Abdulmutallab waited until the very last moment before he discharged his incendiary device. Why did he wait so long? Was he having mixed feelings about the mission? Or maybe he was drugged prior to the flight?

Jasper Schuringa was the passenger credited with putting out the flames on Abdulmutallab and possibly saving the plane and its 277 passengers and 11 crew.

“When I saw the suspect he was getting on fire and I freaked of course,” Schuringa told CNN, “and without any hesitation jumped over the seats and jumped to the suspect because I was thinking, like, he's trying to blow up the plane.”

Asked by CNN if Abdulmutallab resisted, the heroic passenger said no.

“He was just very calm,” Schuringa said. “He was shaking, but he didn’t resist anything. He was just sitting there.”

There are many other hanging details about this attack that have yet to be explained, including why the Haskell’s claim of the “well-dressed man” went ignored by the authorities for so long.

At the bottom of an ABC News report (entitled: Alert: Female suicide bombers may be heading here from Yemen), the eyewitness account by Kurt Haskeel and his wife, two reliable witnesses, is vindicated as authorities admit they are searching for an individual who may have accompanied Abdulmutallab in case he got “cold feet.”

“Authorities had initially discounted the passenger accounts,” the news affiliate reported, “but the agents say there is a growing belief the man have played a role to make sure Abdulmutallab ‘did not get cold feet.’”

Hello body scanners, goodbye liberties

Finally, there is another part of this story that begs consideration: the sudden enthusiasm for the introduction of body scanners at airports everywhere.

Consider the following news report, which is becoming an increasingly common theme in newspapers around the world:

“Heathrow and Manchester airports started operating advanced imaging technology (AIT) scanners from noon. Birmingham airport will follow suit later this month ahead of a national rollout.

Passengers who refuse to submit to a full body scan at will be barred from taking their flights, it was announced today. It is now compulsory for people selected for a scan to take part, or they will not be allowed to fly.

The move – strongly criticized by civil liberties campaigners, who say the scanners are an invasion of privacy – follows the attempted Detroit bomb attack on Christmas Day. Umar Farouk Abdulmutallab is accused of trying to detonate a bomb on a flight as it was about to land in the US city.”

As the story above acknowledges, many people are staunchly opposed to the introduction of such invasive technologies. After all, 'those who would sacrifice their liberties in order to save their freedoms deserve neither,' the saying goes. In other words, convincing people, not to mention the airports, that body scanners must be installed would be a very hard sell. So what better way to get the public to sacrifice their civil liberties, which they would not do under normal conditions, than for an alleged terrorist to board a plane with a bomb in his underwear?

US radio host Alex Jones reported on the “Homeland Security funding of more than $7 billion dollars that was funded in early 2009 for full body scanners to go into 214 airports – that’s every major airport in the United States by 2010.”

“And then magically,” Jones continues, “on Christmas day… the underwear bomber gets on the plane without a passport, is led by the well-dressed man… in Amsterdam.

“Magically that happens…and they begin beating the drum saying ‘we must have body scanners, we must have body scanners.’”

This theory, which in some circles goes under the heading “conspiratorial,” nevertheless deserves a second look simply because there are too many contradictions in the official story.

Here we have a young Nigerian man from a wealthy family who suddenly travels to Yemen, where he falls under the influence of a group of fundamentalists. After awhile, his father warns the US embassy of his son’s “radicalization,” but the warning goes nowhere. Several weeks later, Abdulmutallab successfully boards a plane in Amsterdam for Detroit with explosives on his body.

He is escorted to the ticket counter by a well-dressed man of possible Indian descent. On board the plane, the would-be bomber waits until the very last moment to discharge the incendiary device, which suggests he was either having second thoughts or was not in physical or mental shape to perform his task. Was he drugged before the flight? Did anybody check? What was his medical condition?

A man on the plane a few seats behind Abdulmutallab, according to eyewitnesses aboard the plane, is reportedly filming Abdulmutallab throughout the duration of the flight. Why would a man, assuming he really is an accomplice, film the flight if he knew it would crash? Indeed, only if he knew the incendiary charge would not bring down the plane would there be a reason to film.

So to play armchair sleuth, what are the chances that our young misguided Nigerian was transporting a device that was only intended to create a “mild panic,” yet enough to scare airports around the world into forking over the cash for full body scanners? And with Umar Farouk Abdulmutallab bundled off to a military tribunal where he will never see the light of day again, there will be no chance of a "public interrogation" to find out the real story.

Considering the numerous missing pieces of this puzzle, and others like it, would it be prudent to trust a military court to ask the right questions, interrogate the right individuals and provide the public with the right information? The answer seems obvious, but we the people may pass on those rights because once again we blinked in the aftermath of an alleged and sensational terrorist attack when in reality we should have been asking some hard questions.

Given the inconsistencies, the people deserve to hear Abdulmutallab's first-person account of exactly what brought him to Detroit under such odd circumstances.

After all, for some individuals, a war on terrorism is a terrible thing to waste, and a military tribunal would amount to a waste of time.

Robert Bridge, RT