Obama’s EO on Indefinite Detention: Wanting Bud McKeon’s Cake and Eating It Too

[Update, 12/7/11: I find I’m still linking back to this post, and cringing everytime I see I got McKeon’s name, Buck, wrong. Apologies.]

I plan to do some more reading on Obama’s proposed Executive Order on Indefinite Detention (not least, once an EO becomes public). But here are some preliminary thoughts after having read Adam Serwer’s very good summary of the debate thus far.

The biggest reason to do this, IMO, is to head Lindsey Graham (who wants to pass a law authorizing indefinite detention) and Bud McKeon (who wants to rewrite the AUMF to authorize a limitless war on terror, along with the detention that would “authorize”) off at the pass. What Graham and McKeon want is undoubtedly worse.

But there are several problems with this as is.

1) I’m with Ben Wittes. I have a real problem with doing this via Executive Order. The whole problem with an executive just inventing his own judicial system is that it is unilateral and probably no more legal than Bush’s original review boards were. So even though liberals might LIKE this outcome better (and like it FAR better than what McKeon wants), legally it seems no more defensible. It still is an abuse of separation of powers.

2) Moreover, doing this with an EO is all the more problematic because EOs, as Bush showed and Obama’s first White House Counsel endorsed, are susceptible to pixie dust–to being changed with no public notice. There is nothing in principle to prevent Obama from secretly changing the terms of his EO on indefinite detention from including just al Qaeda and related groups to including FARC and drug traffickers to including Assange.

3) You might say the AUMF prevents that from happening. But if that’s so, then why is the AUMF not sufficient (that is, if as everyone says and DOJ concluded last year, international law provides for detention during wartime, then why do we need an EO reasserting that authority?). Sure, this EO puts a nice gloss on indefinite detention authorized–they say–under AUMF, but I’m afraid it also serves to push the boundaries of the AUMF. After all, Obama’s own Guantanamo Task Force has said the Yemenis could be released but couldn’t be released to Yemen, suggesting his own lawyers agree that they are not the kind of High Value Detainees who really fall under detention guidelines under the AUMF, but we’ve got to keep them anyway–partly–because of a war against AQAP, a force not included in the AUMF, but also–partly–because our unreliable ally there is fighting a civil war that threatens to morph into our war on terror and makes it dangerous–for reasons that may not have anything to do with Islamic terrorism–to release into that country. Yet the Yemenis appear to be included in this EO. In other words, the notion that such issues should form the basis for indefinite detention when they are not tied to the terms of the AUMF seems more likely to be abused under an EO.

4) All of which comes back to Bud McKeon, who wants to rewrite the AUMF to authorize foreever whereever war. This EO seems, as much an effort to get around Republican hopes for expansive indefinite detention, also an effort to get around revisiting the terms of the AUMF, even though we badly need to do so. Mind you, I’d like us to revisit it, declare the War on Terror as defined by the AUMF won, and the ongoing fight against terrorism a law enforcement exercise. That is, in my opinion, the legally correct thing to do. But Obama doesn’t want to lose his expansive executive powers which a law enforcement approach would require (and surely is unwilling to take the politically bold stance of observing that the war we’re fighting in Afghanistan has little to do with 9/11). So he’s basically endorsing McKeon’s awful stance, while trying to avoid doing so publicly. He basically wants the untenable outcome McKeon is pushing without the backlash from civil libertarians in this country (which are admittedly an increasingly small concern for Obama) or the international community (which is probably a growing concern) that he’d get for embracing McKeon’s unjustifiable stance. He wants to have Bud McKeon’s cake and eat it too.

And no matter what one thinks the correct stance is, this seems to be all about Obama having missed his opportunity to take a correct and defensible legal stance in 2009 (thanks Rahm), but also refusing to take a stance he’ll need to fight for going forward. Now, frankly, of all the political fights Obama refuses to fight, I suspect an assessment that this is now an unwinnable fight might, for once, be accurate (which is different than agreeing that it was unwinnable in summer 2009). In other words, his assessment than an attempt to head Bud McKeon off at the pass may indeed be morally preferable if legally suspect. But all the claims about EOs stopping short of institutionalizing a permanent system of indefinite detention also ignore the ways that doing this via EO is at the least legally troublesome and may be far worse in the long run.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

49 replies
  1. bobschacht says:

    Thanks for covering this dreary business, and for not letting the shiny objects of Christmas keep you from reporting the sense (or lack thereof) of what is happening to our country.

    Merry Christmas!

    Bob in AZ/IL

    • Jeff Kaye says:

      What makes you think Fitzgerald has a problem with this? Or anyone at DoJ?

      End runs around gutting the Constitution by ripping up separation of powers, habeas, and asserting rule by Executive fiat???

      Either one fights this cleanly or not. There is no essential difference between Obama and McKeon, or their parties. Is this not what EW concludes?

      So [Obama]’s basically endorsing McKeon’s awful stance, while trying to avoid doing so publicly. He basically wants the untenable outcome McKeon is pushing without the backlash from civil libertarians in this country (which are admittedly an increasingly small concern for Obama) or the international community (which is probably a growing concern) that he’d get for embracing McKeon’s unjustifiable stance.

      No tricks can save democracy, only hard political struggle, even if that means being in the minority for awhile. This is not a negotiable issue. This in the end is not just about the Guantanamo detainees or their torture, but the test cases for which we all understand they are living, suffering symbols.

      If you want a small peek into how the rulers here search every crevice to find ways to cover up their operations, see the recent investigatory article I co-wrote with Jason Leopold, Ex-Guantanamo Official Was Told Not to Discuss Policy Surrounding Antimalarial Drug Used on Detainees.

      • person1597 says:

        “You have to remember that this was in the context of February 2002,”…

        Somehow that context has lingered as if it never passed. Otherwise, how else can Obushma explain his actions today? Remembrance!?

        I’m curious how much the past will have to “change” so that the future can proceed on a constitutional basis. Probably lots of “context” lurking in the executive branch yet to be revealed.

        Right now, the future looks to be a continuation of the past… At least until the obsequious “remembered context” is purged by the spoon of truth.

        Alas, there is no spoon.

  2. MadDog says:

    I can understand that the Obama Administration felt upon winning the election to the White House that the Bush/Cheney regime left them in an untenable box with regard to some of the detainees.

    The Obama Administration believes they can’t legally try these detainees because the Bush/Cheney regime tortured them, but the Obama Administration are also unwilling to accept the political costs in letting unconvicted, but likely real bad folks go either.

    I can even understand that the Obama Administration would wish to avoid having the Repugs formally legislate indefinite detention without trial; something that is in opposition to the very concept of a judical system.

    But in the end, the Obama Administration has chosen to take the “easy” way out by in essence, by really doing nothing.

    Another Potemkin Village, another, as Spencer puts it, “Administrative Review Board 2.0.”

    A couple coats of paint, some flowerbeds dressing up the front yard, but when all is said and done, it is still indefinite detention without trial for the unconvicted.

    • bmaz says:

      It is a thankless decision to have to make; but it needs to be made. Pick a path, explain it legally and morally to the people, defend it in court and live with it. The indecisive, swerving thread through a moving needle junk is maddening. It is not an issue that can be slicked to make everybody happy; do what is the most right you can do and deal with it.

      • MadDog says:

        Exactly! Profiles in Courage rather than Profiles in Cowardice.

        For all the vaunted “pragmatism” assigned to Obama by the political punditry, my definition of “pragmatism” does rest on merely choosing the least politically painful, but instead rests on a centerpiece of doing what is right regardless of the cost.

        • MadDog says:

          …For all the vaunted “pragmatism” assigned to Obama by the political punditry, my definition of “pragmatism” does rest on merely choosing the least politically painful, but instead rests on a centerpiece of doing what is right regardless of the cost.

          Should have used Edit because what I meant to write was:

          …For all the vaunted “pragmatism” assigned to Obama by the political punditry, my definition of “pragmatism” does not rest on merely choosing the least politically painful, but instead rests on a centerpiece of doing what is right regardless of the cost.

    • Mary says:

      I don’t buy that for a minute. Holder, to give him some kind of due, actually had a halfway decent gameplan on KSM. Try him for what he did prior to 9/11, which is enough for the death penalty, and for which we had all kinds of evidence not related to torture.

      Then over and over pound on the fact that the ONLY reason we can’t try for 9/11 and find out what we need and give some public satisfaction for that, is bc of the inept, morally repugnant, bungling of the Bushies. KSM seems more than willing to be chatty, too, so you still have someone engage in legal interrogation of him back here in the states and get all the info you can. Maybe you even get to use someone who really is/was an expert on KSM instead of a guy named Deuce who devotes his life to sitting in a torturing psychologist’s pocket. So maybe, even at this late date, you really get some information.

      It’s not an untenable situation, it’s a situation that involves having honest and direct conversations with the American public about what happened and what our options are now. OTOH, if telling the truth and hurting Dick Cheney’s feelings is the Obamaco definition of untenable, then yeah – untenable is the word.

      • MadDog says:

        I don’t buy that for a minute…It’s not an untenable situation…

        Then we actually agree. *g*

        Pardon my earlier shortcutting, but to be more specific, the “untenable” I was describing was the Obama Administration’s “perception” of being in an untenable box.

        The reality is of course that they could have and should have done the “right thing” that you and bmaz have more eloquently described.

        • Mary says:

          I know -that didn’t come out right from me. The “I don’t buy” was directed at the Obamaco party line, not the actual content of your post. I followed what you were saying and it “read” in my mind with the “not”

          • MadDog says:

            To some, this may seem counterintuitive, but politicians, by their very nature, seem to be the most cowardly folks around.

            And there is a certain unobvious logic to that hypothesis.

            After all, these are folks who must have a majority of voters behind them before they do anything.

            A definition of leading by following.

      • Jason Leopold says:

        This info was somewhat lost but I thought it very interesting and certainly showed how other countries were viewing the Obama admin’s approach to prosecuting KSM, et al, and Holder specifically. From the NYT last week:

        A secret State Department cable from Madrid — part of a cache obtained by WikiLeaks and made available to The New York Times — shows that in January 2010 Spain’s attorney general and its chief prosecutor lauded the ”bravery” of Mr. Holder’s push to prosecute Mr. Mohammed in a regular court, which they portrayed as ”going back to democratic normalcy.” They offered to provide evidence about Mr. Mohammed’s role in an Al Qaeda attack on a Tunisian synagogue in 2002 for use in such a trial.

        • PeasantParty says:

          Spain has been more interested in prosecuting the real criminals than the US has. Isn’t it strange that another country has to keep ours on it’s toes to cover up anything left showing?

        • Mary says:

          I’m glad you brought that up and linked it.

          @17 – As a matter of fact, Obama’s lawyers engaged in deliberate defiance of court orders because of the invalidity of the “evidence” under which a chunk of the Yemenis have been held. In one of the habeas proceedings (in front of Sullivan IIRC) Judge Sullivan made the transcript of a hearing public and it was linked here. Gov had been ordered to turn over information with respect to their witnesses and deliberately chose not to make available the information that their star witness, also IIRC a Yemeni detainee at GITMO, had severe mental health issues.

          The Petitioner’s only found out by inadvertance, when something got mixed in with their own clients health info. What was suppressed was 100% within the bounds of what the court had ordered Gov to turn over. Gov lawyers (I seem to recall one named Warden – bc of the irony – but that could be wrong) really and truly had the nerve to argue that it was ok for them to violate the court order and hide the adverse evidence bc based on OTHER information that they had already turned over to the Petitioners, their witness had no crediblity.

          So the argument goes something like: we’re holding your client based on the evidence from a sole witness who, based on what whe have already turned over to you, has no credibility. Because he is already so impeached and impaired, we don’t think we have to give you even more info on what a horrible witness he really is – – – oh, but did I forget? – we are going to continue to keep your client disappeared at GITMO based on what this guy told us.

          It was absolutely incredible – in a notgood way. And IIRC, it became pretty clear from what Sullivan said about other judges with other cases needing to be apprised of the mental states info and other cases information that was coming out about one witness being the sole or definitely central witness to most of the Yemeni detentions, that this same guy was at the heart of a lot of the Yemeni guys who were disappeared to GITMO.

          BTW – the Moscow police chief – like the Obama administration and Bush/Obama Department of Justice – is questioning the need for Civil Liberties.

          http://news.yahoo.com/s/ap/eu_russia_ethnic_tensions

          The only thing they left out of the memo were citations to John Yoo’s memo and Koh’s public stance on assassination.

        • Mary says:

          They wrote a song about my quaintessence –

          Mary Mary Quaint Contrary ;-)

          @38/39 TPM had a story a couple of days ago that this was a part of a deal cut on don’t ask/don’t tell. Repubs in the Senate would let it go to vote if the House Dems would muscle in the restraints on GITMO transfers.

          No one is afraid of what they crazy guy Zubaydah who has been tortured for years is going to do in the US – they are only worried at what rights he might have when he touches US soil and what happens when there is press coverage of the crazy guy we tortured for so long.

          After watching the Clapper Cluelessness on the London arrests (which even Fox news watchers would have known something about) it’s that much more frightening that it’s guys and gals with that level of breifing and accumen who are making the decisions on who and what to bomb and why.

  3. Mary says:

    I’m going to sound oversimplifying and naive and unable to grasp the context of the larger political struggle, but since that’s me – a naive bumpkin from rural Kentucky – here I go.

    Obama had a remarkable chance early on to do something positive that would have been healthy for the country and for all its institutions, but destructive towards Bush and Cheney.

    All he had to do was take to the air and tell the truth about the clustermuck that were the black site and GITMOE detainees.

    Americans aren’t idiots truth has the benefit of always making messaging a lot easier.

    If he’d taken to the air waves, apologized to Arar and el-Masri and Errachidi and Sean Baker and produced the August 2002 memo outlining that the WH was informed that early on that lots of those it was holding at GITMO were complete mistakes and outlined that torture was directly responsible for the lie about training camps that was laundered to the UN through Powell and that based on all those things, the only way to sort out where we have been, where we are, and where we can go with any kind of credibility and with any ability to have confidence in the information on which we are making such major decisions is to submit all of these cases to the kind of real, tried and true adversarial process you get in trials AND to apologize and make reparations to those who were the victims of our mistakes – – then he could have pulled off a lot. A LOT. And with relatively little fallout (except a few individuals being pissed as hell that they are now shown to be incomeptent torturers instead of big, brave patriots or collusive member of Congress, instead of stalwart national security defenders) and with the upside of reinforcing all insitutions of government. Additional upside – huge surge in credibility worldwide. Additional additional upside – showing the US will provide justice and do the right thing vis a vis people like Arar, el-Masri and even Siddiqui and her missing children – in a way that the Taliban never have and never will.

    He could still try the truth at some point in time, but he’s become so associated with being a backtracking politically-motivated misinformer, that there’s not nearly the headway to be made.

    Really – from now on, its all a matter of which coverups you like best, Republican or Democratic. Covering up a horrifically ugly face or a repulsively diarrhea spewing behind.

    • PeasantParty says:

      I’m so with you on that one! The truth will set us all free and especially Obama. He will not be burdened by the mess he has walked into and that continually taps him on the shoulder.

      Plus, the warz for eternity will have to stop and the funds used to make America profitable again.

      Lindsey Graham needs to be flown to Afghanistan and put down in the middle of the Taliban.

  4. Mary says:

    So – how many bloggers are going to be asking the WH spox apparatus if there will be a nifty big signing ceremony that can be used for his re-election campaign?

  5. eCAHNomics says:

    This is sooo typically O. “I’ll do something really really bad before you do something much much worse Lindsey Graham. So there. Nya nya nya. I win.”

  6. jpe12 says:

    After all, Obama’s own Guantanamo Task Force has said the Yemenis could be released but couldn’t be released to Yemen, suggesting his own lawyers agree that they are not the kind of High Value Detainees who really fall under detention guidelines under the AUMF

    The report doesn’t support that conclusion at all. Per the report, they weren’t released to Yemen not because of a lack of power under the AUMF, but because Yemen is a shithole and we couldn’t be sure that the detainees wouldn’t get up to terrorism there. (“[D]etainees would be returned to Yemen only at a time, and only under conditions, deemed appropriate from a security perspective.”

  7. PeasantParty says:

    I’m not sure if this is Obama’s way of declaring the detainees prisoners of war, or his way of finding some out to let them go.

    Either way, this does not look on the up and up, and causes more suspicion by all of us that feel the wars were big grabs for Oil/gas/mineral/corp profits.

  8. Kassandra says:

    IMHO, Obama would have never been selected president if he hadn’t (1)agreed to NOT look into Bush/ Cheney war crimes (2) continue them (3) thrown in the bone for gutting social programs and continuing the upward flow of the $$$$

    Any other explanation of his behavior simply doesn’t make sense to me.; Not after what he promised the American people of which most of his supporters still believe he will do….someday, if only the evil republicans will let him. ( whine, sob)

    The War’s The Thing!

    • PeasantParty says:

      Yep, and he has done an excellent job of it. As per my post above about Spain. Notice I didn’t say that the US would follow through, just that Spain allows them to see where the underpants are hanging out.

    • Jesterfox says:

      If he was going to lie to someone, why couldn’t it be them? Why does it have to be us? After he was elected and sworn in, why couldn’t he say, “You know how I wasn’t going to investigate and prosecute torture, war crimes, lying us into war, taking down the economy; you know, all that stuff? Well, now that I’ve got the power, I’ve changed my mind and you’re under arrest.”

      Why does it have to feel like Babylon 5 and he’s had one of those mind control creatures implanted?

    • eCAHNomics says:

      Hmmm. I thought I read something to that effect a couple of days ago, maybe RawStory?

      Jason, what’s your read? Are the Rs just running cover for stuff O wants to do anyhow, like indefinite detention, torture, keeping Gitmo going, etc, etc?

    • spanishinquisition says:

      “dealing a major blow to President Obama’s vows to shut down the center and give federal court trials to many of the prisoners.”

      Yeah, the NYT is trotting out the standard Obama The Powerless Victim Card when in fact Obama wields the veto pen. I think this is along the lines of Obama supposedly wanting the PO but being powerless against Congress and we all saw how Obama really felt behind the scenes. Unless Obama vetoes that legislation, he should be held accountable for signing it.

  9. Mary says:

    BREAKING – Government admits error in handling of terror suspect and apologizes.

    Of course, that would be the Government in OZ and not the US.

    Admitting their mistake, Australian government today formally apologised to Indian doctor Mohammed Haneef and said sorry for wrongly detaining him on terror charges

    “The AFP (Australian Federal Police) acknowledges that it was mistaken and that Dr Haneef was innocent of the offence of which he was suspected,” the apology read.

    “The AFP (Australian Federal Police) acknowledges that it was mistaken and that Dr Haneef was innocent of the offence of which he was suspected,” the apology read.

  10. powwow says:

    Excellent analysis of a very important subject, emptywheel.

    The use of indefinite military detention in armed conflict is well-established, but it’s not clear whether those who would be detained under this policy are actually “battlefield captures,” or whether military detention is a mere smokescreen for holding people indefinitely who should be charged with a crime or released.

    – Adam Serwer, from the post’s second link

    To put it mildly, Adam…

    I detailed in an earlier Spencer thread (the fourth link in EW’s post above) the clear, on-the-books “Article 5” hearing process mandated by the Geneva Conventions to settle questions about armed-conflict detainee status, when that status is claimed (by either side) to be other than the default of POW [Prisoner of War]. The obvious potential for confusion and error in determining the status of “wartime detainees,” which Adam references in that excerpt, is the primary reason for such fair, timely Article 5 hearings as, crucially, already mandated by the law of the land in the United States.

    Since the United States has not formally withdrawn its ratification of the Geneva Convention treaties, nor rescinded the Article 5-implementing Army Regulation 190-8 (except by the despotic pretense of a commander-in-chief dictate a decade ago ordering the military to ignore its clear, binding Geneva Convention obligations), nor complied with Article 5 (with its ad hoc post-2003 CSRTribunal scheme) according to the two (federal district and Commission appellate) courts and one Military Commission judge to have confronted the issue head on, it feeds right into the hands of the proponents of unchecked presidential detention power to ignore dishonored, yet still-binding obligations of law like Article 5 process, which are already on the books, as though they’ve simply ceased to exist.

    [By the way, the same Court of Military Commission Review (CMCR) that determined in 2007 that the CSRT system was and is not sufficient due process to substitute for mandated Article 5 hearings, has been sitting on the Al Bahlul and Hamdan appeals of their Guantanamo Military Commission convictions (the only non-plea-bargain Commission convictions) since January, 2010, when oral arguments were held. Next month, the CMCR will have had these cases submitted to it for an entire year, without having issued a decision, despite having no other cases on its docket.]

    I also noted in that earlier thread how the Supreme Court has managed to avoid directly confronting the violated Article 5 hearing requirements in its Guantanamo-related decisions to date, even as it imposed, in Boumediene in 2008, a habeas corpus remedy to try to substitute, in part, for the lack of such impartial Article 5 process. [The post-Boumediene habeas corpus hearings, however, have been ignoring the treatment and detention conditions (including the denial of default POW status under the Geneva Conventions) of the Guantanamo detainees whose petitions are being heard – focusing only, as directed by the D.C. Circuit so far without further Supreme Court review, on whether detainees were more likely than not “a part of” Al Qaeda, the Taliban, or “associated” forces.]

    The D.C. Circuit Court of Appeals, the Supreme Court, and the Department of Justice of the United States have failed to enforce pre-existing treaty requirements – treaty requirements that long pre-date the halting Boumediene-ordered Guantanamo habeas corpus hearings ongoing in one federal district court – which mandate that the U.S. military grant its wartime detainees – past and future – just the sort of fair hearings that the Obama administration, like its predecessor, is loath to grant to America’s “wartime” captives. It is because of that failure to enforce the law, and the uncorrected breaching of military regulations, that presidential appointees today are getting away with trying to concoct yet another lesser, due process-deficient Executive Branch hearing process to substitute for their unfulfilled obligations under international law and the law of war, which the administration continues to violate with impunity.

    Since I wrote those two earlier comments, I’ve gone back to listen to the oral arguments at the Supreme Court in a couple of the cases that impact on Article 5 process, and I’ve transcribed below some key exchanges in the Hamdi oral argument, way back in April, 2004 – before the Combatant Status Review Tribunals (CSRTs) had been concocted by the Bush administration in a bad-faith pretense of honoring and implementing some early Supreme Court Guantanamo decisions.

    This important 2004 discussion in the Supreme Court – which I’ll impose on the thread despite its length, due to the gravity of this issue – delves into the Article 5 process more than the subsequent majority decisions themselves do, and the questions and answers remain extremely relevant today, given the latest Executive and Legislative Branch “indefinite detention” proposals – proposals which continue, in line with the Bush administration then, to mock the limits and mandates of the law of nations, the law of armed conflict, the ratified Geneva Convention treaties that were informed by the hard-earned lessons of World War II, and Department of Defense regulations like, in particular, Army Regulation 190-8.

    Speaking for the government is then-Deputy Solicitor General of the United States, Paul Clement (he is being interrupted by a pointed, potent question from Justice Breyer, directly referencing Army Regulation 190-8, as the excerpt begins, 37:16 minutes into the argument).

    Transcribed from the April 28, 2004 Supreme Court oral argument in Hamdi:

    Justice Stephen Breyer: Well, wait, you’re — also, the [2001 AUMF] words are “necessary and appropriate.” And also the words in the Constitution are “due process of law.” And also the words in the Magna Carta were “according to law.” And whatever form of words in any of those documents there are, it seemed to refer to one basic idea that’s minimum: That a person who contests something of importance is entitled to a neutral decision-maker and an opportunity to present proofs and arguments. You’ve heard, in the last hour, people talking about the military itself recognizing that basic principle with tribunals in what’s called Army “Reg” 190 point 8.

    Now, is there any reason why, when a person says “I am not a combatant, I was a relief worker, I wasn’t even there, I was sold into this by people who wanted a bounty” – is there any reason why you could not have that kind of proceeding? The kind of proceeding that was given in the Gulf War on the battlefield in hundreds of instances, that was given in Iraq in hundreds of instances, the kind of proceeding that the military itself has given over and over and over? Now, is there any reason why that isn’t necessary and appropriate? Or why that isn’t in accordance with law, or due process of law?

    Deputy U.S. Solicitor General Paul Clement: Justice Breyer, let me say several things. One is that the regulations that are being bandied about are the regulations the Army uses to comply with their obligations under Article 5 of the Geneva Convention. Now, Article 5 of the Geneva Convention does not apply here, and let me address why in a minute. But let me say very clearly that these individuals have gotten military process. It might not have been the exact process…

    Breyer: That wasn’t the question I asked. The question I asked: Is there any reason why the Army itself could not give a comparable, basic proceeding where you have a neutral decision-maker, and a practical, but fair opportunity to present proofs and arguments? Not some kind of thing on the battlefield, something two years later, not some kind of thing where you haul in witnesses, but something that’s practical insofar as you get evidence that’s reasonably available.

    Clement: Well, Justice Breyer, I understand that, but the practical answer that you’re looking for assumes a process that’s never been provided. There’s never been a process that’s removed from the battlefield. What Article 5 provides and what the military regulations provide is immediately adjunct to the battlefield. You have three military officers who do a very quick hearing, the purpose of which primarily is to figure out not whether somebody is completely innocent, but to figure out whether they are properly classified as a prisoner of war as opposed to an unlawful enemy combatant.

    Justice Sandra Day O’Connor: So you say the regulations in place provide for that battlefield-type review?

    Clement: They do, Justice…

    O’Connor: Did this petitioner [Saudi/U.S. citizen Yaser Hamdi] have that type of review?

    Clement: This petitioner, Justice O’Connor, did not get that precise type of review, and the reason is because, based on a presidential determination, the military officers understand that Article 5 of the Geneva Convention has no application here. Again, that provision, and I think it’s worth…

    O’Connor: Well, perhaps not, but we’re here on habeas. Do you agree that he’s entitled to bring a habeas action?

    Clement: We do agree that he’s entitled to bring a habeas action…

    O’Connor: Okay, so then we have to decide then to what is he entitled. And even that minimal review by the military you think is not required?

    Clement: Well, I don’t think it’s required, especially in a situation like this, where, although Hamdi did not receive an Article 5 hearing because it was inapplicable, he did receive military process. When he was originally turned over to the United States forces by the Northern Alliance – our military allies – there was a screening process on the ground in Afghanistan. Now that process screened out ten thousand individuals out of U.S. custody. So he received that process. Now, to be sure, it’s a military process – but it is the kind of process that prisoners of war and enemy combatants have always gotten. Now because of the nature of this war, Hamdi got additional process. And it’s important to point out that this Article 5 process that other prisoners of war traditionally get is a one-shot deal. It’s done off the battlefield and that’s it – you’re under detention for the remainder of the battle, and there’s no reason for Congress to have to go in with a new resolution – you’re there for the remainder of the war.

    Now in this context, because we recognize that there is some unusual aspects to this war, and also because the United States military has no interest in detaining any individual who’s not an enemy combatant or who does not present a continuing threat, when Hamdi got to Guantanamo, he was given additional screening processes. That screened him in as well – did not screen him out. Then it may not seem what you think of as traditional due process in an Article III sense, but the interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake. And as the affidavit that’s in the record here shows…

    O’Connor: Do you say he had that opportunity?

    Clement: Absolutely, Justice O’Connor, and the affidavit that’s filed here represents – by [Special Advisor to the Under Secretary of Defense for Policy] Mr. [Michael] Mobbs – the interrogation process. In that process, his story confirmed that he was on the battlefield and surrendered with the Taliban military unit while armed.

    Justice Anthony Kennedy: You concede that you have the obligation to make the representation that you’ve just made, to the habeas court?

    Clement: Justice Kennedy, I’m not positive what the ultimate minimum that the habeas statutes would require in this context, but we do think that an appropriate balance of individual rights, the traditional role of habeas, but the overwhelming military imperatives of this situation, are that the habeas corpus writ is available, first to make legal challenges to their detention along the lines of “4001(a) categorically precludes this” – and those challenges have been open. We also think it appropriate for the United States to come in with a declaration that explains the basis for the military’s decision. And particularly I think what it does is it provides an explanation that, if believed, provides a basis for a court to police the line that separates Quirin on the one hand from Milligan on the other. And obviously a situation like this – with a battlefield detainee, who surrendered while armed on the battlefield – is a classic case of an enemy combatant.

    Justice Ruth Bader Ginsburg: And in Quirin, the defendants were heard and that’s… The Mobbs Affidavit – I take it your position is yes, habeas, and yes, the government has to come forward with something – and the something they came forward with is the Mobbs Affidavit, which is hearsay, because Mobbs doesn’t know what happened on the battlefield either. And that there’s no statement at any point from Hamdi, although the claim before us is that he would dispute what’s in the Mobbs Affidavit, but he doesn’t have an opportunity to do that.

    Clement: Well, Justice Ginsburg, I mean there actually is – I mean, it would be something like double hearsay – but there is a statement in the Mobbs Declaration itself where Mobbs is summarizing Hamdi himself.

    Ginsburg: Yes, but that certainly is double hearsay.

    Clement: It certainly is, but this is…

    Ginsburg: The person who is locked up – doesn’t he have a right to bring before some tribunal himself, his own words, rather than have a government agent say what was told to him, that somebody else said?

    Clement: With respect, Justice Ginsburg, he has an opportunity to explain it in his own words. Now it may not…

    Justice David Souter[?]: During interrogation? I mean, is that your point?

    Clement: During the initial screening, during the screening in Guantanamo.

    O’Connor: But how about to a neutral decision-maker of some kind, perhaps in the military? Is that so extreme that it should not be required?

    Clement: No, Justice O’Connor, let me say two things. One is, when the initial screening criteria are applied in the field, for all intents and purposes, that is a neutral decision-maker. I mean, as I said before, the Army is not interested in holding people as enemy combatants that don’t qualify for that and don’t pose a threat. The second thing I would say, though, is that as I understand it, the plan on a going-forward basis, reflecting the unique situation of this battle, is to provide individuals like Hamdi, like Padilla, with the equivalent of the annual review process that’s laid out in the briefs in the…

    O’Connor: Well, let’s talk about that for just a moment. What is it, that the government is saying will be provided?

    Clement: Well, Justice O’Connor, those regulations [which, post-Hamdi, apparently surfaced as the CSRTs/ARBs – pow wow] are still sort of in draft form, so I’m, I’m a little bit…

    O’Connor: So we don’t know.

    Clement: We don’t know for sure. I think what’s envisioned is an opportunity to go before a neutral tribunal, some opportunity to present…

    Justice John Paul Stevens: Yes, but Mr. Clement, you’re assuming he has no right to counsel, aren’t you?

    Clement: Justice Stevens, what we’re assuming is that he has no right to counsel that is automatic and as of right.

    Stevens: If he could get his own counsel, would he be entitled to consult with his counsel during the preliminary stages of his detention?

    Clement: Not at the preliminary stages if the government has made a determination that access to counsel would interfere with the intelligence-gathering process.

    Stevens: Are there any cases on… It sounds from your argument that the principal interest that the government wants to advance is the ability to interrogate the person for a sufficient length of time to determine whether they’ll get valuable information out of them or not. And to deny him counsel during the period – that period – because he may not be as willing to talk. Now it seems to me there are two things about that I wanted to ask you about: One, have you considered the possibility that perhaps a lawyer would’ve explained to this man that if you do give some information, you won’t have to stay here incommunicado for two or three years; that might be a motivation to talk. That’s one possibility.

    And the second thing I wanted to ask you about: Are there any cases in the international field or the law – anywhere – explaining that the interest in detaining a person incommunicado for a long period of time for the purpose of obtaining information from him is a legitimate justification for it? I understand arresting on the battlefield – that’s perfectly clear. But is this prolonged detention for that purpose the subject of judicial writing anywhere that you know about?

    Clement: Let me answer both parts of your question, Justice Stevens. Certainly it has occurred to us, and we have considered the possibility that, in some circumstances, with some individuals… […]

    I think – to get to your second part of the question – I don’t know that there are any authorities that I’m aware of that address exactly what you’re talking about. But I think there’re two types of authority that we would point to as being very important. First of all, it’s long been recognized that one of the major justifications for the detention of enemy combatants or prisoners of war is to gather intelligence, and we cite some sources to that effect in the brief. The second thing – and I think this is important – is that is has never been the case that prisoners of war are entitled to counsel to challenge their capture or their detention. What has happened historically, and what the Geneva Convention provides, is that if one of those enemy combatants is charged with a specific war crime, then at that point they are entitled to counsel. But if they are just being held in a preventative detention, then, in that circumstance, they are not entitled to counsel.

    [The Bush administration sent Yaser Hamdi home to Saudi Arabia on September 23, 2004.]

    Article 5 of the Third Geneva Convention Relative to the Treatment of Prisoners of War:

    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 [POW] protection of the present Convention until such time as their status has been determined by a competent tribunal.

    From federal district judge James Robertson’s November 8, 2004 decision in Hamdan:

    The government’s legal position is that the [2004] CSRT determination that Hamdan was a member of or affiliated with al Qaeda is also determinative of Hamdan’s prisoner-of-war status, since the President has already determined that detained al Qaeda members are not prisoners-of-war under the Geneva Conventions, see 10/25/04 Tr. at 37. The President is not a “tribunal,” however. The government must convene a competent tribunal (or address a competent tribunal already convened) and seek a specific determination as to Hamdan’s status under the Geneva Conventions. Until or unless such a tribunal decides otherwise, Hamdan has, and must be accorded, the full protections of a prisoner-of-war.

    […]

    There is nothing in this record to suggest that a competent tribunal has determined that Hamdan is not a prisoner-of-war under the Geneva Conventions. Hamdan has appeared before the Combatant Status Review Tribunal, but the CSRT was not established to address detainees’ status under the Geneva Conventions.

    Salim Hamdan, to date, is the only post-2001-AUMF “wartime detainee” of the United States military/CIA to have been accorded mandatory Article 5 process by our government – and that, only in late 2007 in preparation for Hamdan’s military commission trial [POWs may not be tried, if accused of war crimes, by Guantanamo military commission, by the terms of the Military Commissions Act itself, but only by UCMJ-governed court martial]. That is – despite Judge Robertson’s clear 2004 decision (which the Supreme Court later sidestepped) – more than five years after Hamdan had already been stripped of the status and privileges of a Prisoner of War (and of the right to contest that stripping, which the Supreme Court only partially reinstated in 2008 with Boumediene) because of an unlawful, blanket 2002 “determination” issued in Washington, D.C. – months after Hamdan’s 2001 capture in Afghanistan – by a “tribunal” composed of one man: President George W. Bush.

  11. Mary says:

    Thanks powwow

    I’d probably bold this part as well: “You have three military officers who do a very quick hearing, the purpose of which primarily is to figure out not whether somebody is completely innocent, but to figure out whether they are properly classified as a prisoner of war as opposed to an unlawful enemy combatant.”

    IOW – the “hearing” doesn’t have innocent or non-combatant as an option. YOu get to be a legal combatant (like an Iraqi general who turns himself in, in which case, you get your children kidnapped and held for beatings and mock executions while you are beaten day and night and stuffed in a sleeping bag for repeated suffocation sessions while a carefree suffocator bounces up and down on your cracked ribs until you die) or an unlawful enemy combatant.

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