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!

Really if your haven’t ,seen this,make the time:
The Obama Deception HQ Full length version

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Since the United States has not formally withdrawn its ratification of the Geneva Convention treaties, nor rescinded the Article 5-implementing Army Regulation 190-8 (except by the despotic pretense of a commander-in-chief dictate a decade ago ordering the military to ignore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.