Hope all you want, but I believe that this is what she believes. And that’s a majority of why she was nominated.

The basics of the “law of the land” with regard to protected wartime detainees – Geneva Conventions treaty law ratified after World War II by the U.S. Senate, which is equivalent in force to domestic law under our Constitution – have been ignored, with impunity, by our President and his military chain of command, our Congress, our media, and many of our judges (particularly those sitting on the D.C. Circuit Court of Appeals, the only lower federal appeals court to which our military’s detainees have any access), since 9/11/2001.

IF we had a single Senator on the Senate Judiciary Committee with integrity, genuine respect for human rights and the rule of law as embodied in our Constitution, and perhaps a modicum of moral courage, erstwhile Supreme Court nominee Elena Kagan would be asked a version of the following:

“Is the United States engaged in an armed conflict in Afghanistan?”

Followed by:

“Do you consider Article 5 of the Third Geneva Convention to be binding on the United States government during armed conflict?”

Followed by:

“If so, does Article 5 require that all captives of the U.S. military receive the protection of Prisoner of War status unless and until a “competent tribunal” hears evidence of an alternate status for the captive, from both the captor and the captive, and renders a verdict that either confirms the POW status, reduces the detainee’s protections to Common Article 3 minimums, or to some other related protection for civilians, or orders the release of the captive?”

Followed by:

“Are the ‘Combatant Status Review Tribunals’ that were held at Guantanamo considered to be ‘competent tribunals’ in satisfication of the requirements of Article 5, according to the military judges overseeing the MCA-authorized military commissions?”

Followed by:

“Has the United States military, from what you can gather from public reports, complied with the requirements of Article 5, as to POW status, and competent tribunals to strip such status, since 2001, in our armed conflicts abroad?”

And, of course, if not, why not, to all, as appropriate.

Because:

1. Our Congressionally-blessed, independent-judiciary-spurning military commission system has no jurisdiction over POWs. They would need to be tried by courts-martial under the UCMJ, in our real military justice system, for any alleged violations of the law of armed conflict.

2. The status of being an unprivileged combatant is not a war crime in itself. To reach that threshold, an unprivileged combatant [as properly classified by an Article 5 tribunal] must act against unlawful targets, or otherwise actually violate the law of armed conflict, to be subject to prosecution by a country (for alleged war crimes) other than the nation where the act occurred (for possible violations of that nation’s domestic law).

3. Since no POW protection or status was given to any of our wartime captives in Afghanistan or Guantanamo, and no fair Article 5 hearings to assign an accurate alternate detention status to them were held (a status which determines both the lawfulness of their detention and pre-capture behavior, and their subsequent treatment rights in captivity), in open violation of our obligations under “the law of the land” as spelled out by Article 5 of the Third Geneva Convention and Army Regulation 190-8, all our detainees continue to be de facto POWs until proven otherwise.

Unless, that is, unilateral Executive Decree (at the behest of David Addington, Dick Cheney, and Alberto Gonzales) can, at will, void the law of the land and treaty law, without Congress first actually removing the U.S. as a co-signer of the Geneva Conventions as a whole, to moot Article 5 or any other provision.

Or unless, mirroring a certain specious political argument from another law professor, Kagan too reads this portion of Article 5 of the Third Geneva Convention:

“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the [POW] categories enumerated in Article 4, such persons shall enjoy the protection of the present [POW] Convention until such time as their status has been determined by a competent tribunal.“

To mean:

[Provided that the detaining power has no doubt in its own mind] as to whether persons, having commmitted a belligerent act and having fallen into the hands of the enemy, belong to any of the [POW] categories enumerated in Article 4, [because the detaining power simply unilaterally decrees that said captives do not belong to any such POW categories] such persons shall [not] enjoy the [POW] protection of the present [POW] Convention, [indefinitely], or until such time as their status [may finally be forced to be accurately] determined [years post-capture] by a competent tribunal [during possible future military commission pre-trial proceedings (as was the case with Salim Hamdan)].

All of this assumes, of course, in the face of overwhelming evidence to the contrary, that such a concept as “the rule of law” governing the powerful is anything more in this nation than some sort of high-minded theory spouted by Senators for the television cameras at Supreme Court nomination hearings.

The fact is that our “War on Terror” captives are being treated as hybrid prisoners, who fall in a lawless, manufactured gap between protected wartime detainees (whose detention the Geneva Conventions govern – wartime rules which the United States President and Congress have openly violated since 2001) and criminal suspects (whose due process rights are spelled out by the U.S. Constitution – but which the U.S. President and Congress have implicitly repudiated for non-citizens since 2001). This “hybrid” status meets the mandated requirements for the treatment by government authorities of neither wartime detainees nor domestic (or war) criminal suspects.

The U.S. military obviously has, and had, no independent, fact-based evidence available to prove that the vast majority of its (current and former) detainees in Afghanistan and Guantanamo (where more than 50% of the prisoners were released, years after their capture, before Obama became president, despite the ongoing “war”) were actual combatants, or participants in hostilities in this armed conflict, in accordance with the law of armed conflict – unlike POWs in earlier wars, who could therefore legitimately be indefinitely detained, with humane treatment, for the duration of the conflict.

Therefore, our military, at the direction of the President himself, resorted to unlawfully coercing and torturing statements out of its captives [“intelligence squeezing,” as former Guantanamo Military Commisssions chief military prosecutor Colonel Morris Davis just termed it in an interview with a newspaper in Pakistan] in an attempt to use the captives’ own words against them so as to justify their detention on some sort of pseudo-criminal, pseudo-wartime detainee basis that comports with the legal requirements of neither status. A basis that borrows due-process-limited, Judicial Branch-unsupervised detention from wartime rules to hold non-combatant detainees with impunity, while Members of Congress cowardly look the other way.

Some small minority of those detainees – neither POWs nor domestic criminals nor verified to be actual combatants – who are locked up by our military under false pretenses in the name of the law of armed conflict are – likewise without any need to prove the same to an impartial tribunal or independent judge or grand jury – also accused of non-war-crime offenses (including the “crime” of Resisting U.S. Aggression While Muslim, and “material support for terrorism” – which is already a carte blanche domestic criminal offense), that have now been conveniently relabeled by Congress in the Military Commissions Act as purported war crimes. All so that the Executive Branch can pretend [MP3 recording of the January oral argument of the Hamdan appeal in the Court of Military Commission Review] that it can assert unilateral jurisdiction and control over the prosecution of its captives – that is, play judge, jury, prosecutor and executioner within the military chain of command, answerable only to the President, with too little, too late, if any, Judicial Branch oversight as to the validity of its unchecked, if oath-sworn, “defense” of the Constitution.

Someone, sometime, really ought to clue in the American media and Members of Congress about the inoperative status of the “law of the land” in Washington, D.C., before they finish lecturing Kagan about “law,” and “precedent,” and the “Constitution,” and other such niceties that they clearly consider to be applicable to, and worthy of actual enforcement against, only powerless or demonized little people in the provinces.

another OT: FWIW – via the Telegraph

“Terrorism suspects could get compensation if they have been tortured abroad”

‘Terrorism suspects could receive compensation if they have been tortured overseas with the complicity of the British security services, under the terms of a government inquiry to be announced by David Cameron.’

These hearings are kabuki. Questioners ask non-questions and Kagan replies with non-answers. As to Hamdi, it seems likely that Kagan either did not know there were two AUMF or thought that the language in them was the same.

And just to recap here is the text of the 2001 AUMF:

IN THE SENATE OF THE UNITED STATES
September 14, 2001
Mr. DASCHLE (for himself and Mr. LOTT) introduced the following joint resolution; which was read twice, considered, read the third time, and passed

JOINT RESOLUTION
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens;
Whereas such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad;
Whereas in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence;
Whereas such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States; Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force’.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.