I notice that the crucial element ‘determined’ is conveniently passive. Mistakes were made.

A pity we don’t just kick the detainees out the front of Gitmo, I doubt it would cost much to pay the Cubans to keep an eye on them.

AUMF (hey you mofo) is tantamount to declaring war. And you really can’t say you’re at war without some sort explicit declaration. Bush used to say the country was at war (even if only on an abstract noun). Basically, Congress declared war in fall of 2002 in the guise of the AUMF. Historians regard blockades as acts of war. An act of war is tantamount to war, yet undeclared. Today, belligerence is the norm. It’s good for business, after all. At the end of the day, it’s the only reason for waging war. It presents too many opportunities to make a bundle and for people to be heroic and basically just stupendous. Correction, STUPID.

If you can over ride the constitution with an act why the amendment section for the constitutional originalists ?

An act can’t amend the constitution. In a country with constitutional traitors sitting on the final bulwark against constitutional assault,the court has failed.

FISA is another example of amending the constitution without the messy ratification stuff.

But make no mistake: the next Congress really will debate a terrorism detention statute.

I’m sure your sources are better than mine (I have none), but the only debate on a detention statute will be our Congressional worms trying to out tough each other from proposals for more indeterminant detention to outsourcing prisoners to private prison companies or to their favorite third world counties.

The reauthorization will be a pig slop for Congress to gird their retirement accounts by kow towing to their best paying defense contractors, while expanding executive power.

[I]n a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War.

Article 5, as interpreted by Eric Holder, who’s not exactly a shining beacon of civil liberties; and his successors, who might be worse yet.

There’s no danger of a fair trial for anyone detained under this provision.

I predict the Tea Party will meekly go along with whatever shredding of the Constitution the Republicans want to propose.

Yeah, I can’t see Congress debating it too much since Obama is heavily reliant on it which leaves out much Democratic debate while the Republicans will be all for re-authorizing it…I don’t see how Democrats or Republican have much to gain politically and the Democrats have already shown they fold up like cheap suits particularly in something that could put Obama in an awkward situation.

Actually I’ll be very curious to see what Obama does as he’s the actual user of AUMF. I doubt for instance that Obama would veto shredding the Constitution, which he’s already shown such a fondness for shredding the Constitution.

So long as the Second or Tenth Amendment isn’t headed for the shredder.

they never read the part of the constitution that comes after “we the people”.. being as it is far beyond their limited mentalities…

The guy is not getting it! The Republicans have two years to prove themselves. Otherwise 2012 is going to make 2010 look like romper room.

By the way, here is a way to control costs and cut taxes. Bet the republicans would have a real issues with his.

A new AUMF would at least be more specific about what powers Congress actually intends the president to have to conduct a war against al-Qaeda — as well as, perhaps, what the boundaries of those authorities might be. [...] That could go in any number of directions, but at least it’ll be debated. - Spencer

I’m inclined to agree with this perspective, despite McKeon’s unnecessary pre-judgements where (quoting Spencer’s linked Danger Room report) McKeon:

…said closing the Guantanamo Bay detention facility “puts Americans at risk”; and vowed to “legislate a framework” for future terrorist detentions ‘that is guided by the law of armed conflict — not the criminal justice system.”

[...]

And McKeon added that it was time Congress re-debated and renewed the 2001 Authorization to Use Military Force, the basic law authorizing the war against al-Qaeda, since “probably almost half the Congress” currently serving wasn’t around to vote on the decade-old bill.

The debate alone – if House Republicans (and Democrats) do their work, in public, with due diligence – should educate and inform those who need it most: Members of Congress, McKeon evidently included.

I can’t think of a more pressing responsibility or duty for any new House Armed Services Committee chairman than revisiting/revising/repealing the 2001 AUMF – a re-examination that Ike Skelton and Carl Levin should have brought before their committees years ago (as should their Republican predecessors while Bush was president), but which, of course, they never came close to touching. Because of the ongoing failure of Members of Congress to play their assigned role in our Constitutional system, today few, if any, can coherently distinguish between actions taken and funded in the AUMF-authorized “U.S. Self-Defense Conflict” against the perpetrators of 9/11 in Afghanistan, and actions taken and funded in the U.N.-sanctioned, NATO-led ISAF “Support the Karzai Government/Afghan people” mission/conflict in Afghanistan.

I trust that serious hearings, to learn from a broad spectrum of experts who’ve been studying the issue in and out of government, will be held in the House, now that we no longer have the panicked aftermath of the 9/11 attacks as an excuse to omit them. I certainly prefer the counsel of the likes of the DOJ’s David Kris giving input to the Congress on any revised AUMF language, than that of the collection of dishonest Executive Branch extremists who presented the original, existing AUMF to Congress in 2001.

As for this vital language in Rep. McKeon’s proposed H.R. 4892:

“…in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War…”

As tammanytiger indicates @ 6, this is prime territory for more specificity, because arguably the egregious and ongoing failure of the U.S. military to abide by Article 5 (because unlawfully ordered to ignore it by military commander-in-chief George W. Bush, an order left unrescinded by his successor Barack Obama) is the primary cause of the FUBAR Guantanamo (and elsewhere) detention system. As I’ve pointed out before, pre-existing Army Regulation 190-8 mandates procedures that lawfully honor and implement Article 5 of the Third Geneva Convention, but those regulations have been violated by the U.S. military (and CIA) for every prisoner, save one, ever held at Guantanamo Bay Naval Station since 9/11/2001.

Salim Hamdan, alone among Guantanamo detainees, finally received an Article 5-compliant hearing late in 2007, before a military commission judge, where Hamdan was quickly and predictably deemed ineligible for POW status (in other words, deemed an unprivileged combatant) – even though transporting non-POWs out of the territory in which they are captured is a grave breach of the Geneva Conventions, and thus a war crime. If deemed a POW by Judge Allred, Hamdan would’ve been ineligible for trial by military commission under the MCA. That military judge knew something that probably the vast majority of federal legislators then – many of whom gullibly or cowardly accept the swill generated by the war-besotted, crackpot Lindsey Graham, who has long labored to obscure and undermine the details and existence of mandated Article 5 process, and the dangerous, power-abusing consequences that continue to flow from the military’s abandonment of genuine Article 5 status hearings – did not know, and may still not know, even after June, 2008′s subsequent Boumediene decision by the Supreme Court.

What Navy Captain Keith Allred, Hamdan’s military commission judge, knew in late 2007, is that a panel of military appellate judges on the brand new (2006 MCA-created) Court of Military Commission Review (CMCR) had just indicated in another case that the Lindsey Graham-beloved, Wolfowitz-concocted (belatedly, in 2004, in an effort to escape any check on presidential detention power by the Judicial Branch) “Combatant Status Review Tribunals” (CSRTs) did not “satisfy Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War.”

That 2007 CMCR military panel assessed the CSRTs (which, again, were a belated, DOD leadership-concocted end-run around Army Regulation 190-8, that only pretended to be a substantive equivalent), in a decision in the Omar Khadr commission case, as follows, after reviewing and highlighting the crucial treatment and criminal liability differences between “unlawful” (unprivileged) and “lawful” (privileged) combatancy – a status determination that genuine Article 5 hearings are designed to fairly establish based on evidence and argument presented by both the detaining power and the detainee (bracketed comments added by me):

The declared purpose of the [2004 and later] C.S.R.T. process used to review the status of hundreds of foreign national detainees captured in Iraq and Afghanistan and currently held under Defense Department control at Guantanamo Bay Naval Base, Cuba — including Mr. Khadr — was solely to afford detainees “the opportunity to contest designation as an enemy combatant.” Wolfowitz memorandum at 1. The Wolfowitz memorandum never discusses addressing the issue of “lawful” or “unlawful” enemy combatant status; nor does the memorandum from the Secretary of the Navy implementing the C.S.R.T. process.25 As far as we can discern, the C.S.R.T.s were never tasked with making that determination. Instead, they conducted non-adversarial proceedings aimed at deciding, by a preponderance of the evidence, whether each detainee met the criteria for designation as an “enemy combatant” [eligible/required to be treated as a POW until proven otherwise, under Article 5 of the Geneva Conventions] under the definition in the Wolfowitz memorandum26 to permit continued detention at Guantanamo Bay.

- Appellate Military Deputy Chief Judge Rolph of the United States Court of Military Commission Review, 9/24/2007, joined by Judges Francis and Holden

Commission Judge Allred soon elaborated on that analysis in a ruling in December, 2007 [a ruling in which Allred quotes Lindsey Graham in a post-Hamdan (the Hamdan Supreme Court decision threw out the unilateral Bush military commission system in mid-2006) Senate Armed Services Committee hearing in July, 2006, where Graham's working hard to get two witnesses (both Generals) to agree with his stated case that the CSRTs are and were legitimate - in fact 'super-legitimate' in Graham's opinion - Article 5 hearing equivalents, from their (2004) inception]:

Congress was clearly aware of these treaty obligations under Article 5 when it debated and enacted the [2006] Military Commissions Act. [...]

The CSRT [Combatant Status Review Tribunal] did not address [Hamdan's default] entitlement to Prisoner of War status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused’s participation in hostilities. [...] As a consequence, this Commission cannot accept the 2004 CSRT determination that the accused is properly detained as an “enemy combatant” in satisfaction of the required determination regarding his entitlement to Prisoner of War Status.

- Military Judge, Captain, JAGC, US Navy, Keith Allred, 12/17/2007

Subsequently, here’s how the Supreme Court of the United States finally dealt with the question of the legitimacy of the Wolfowitz/DOD CSRTs, in June, 2008 in Boumediene – in the process revealing how Lindsey Graham, among others, has long gamed the Guantanamo debate to help the Executive Branch obscure how that bastardized substitute for Army Regulation 190-8′s Geneva Convention Article 5 procedures (and for the fundamental Constitutional right to the writ of habeas corpus) is no substitute at all [quoting the Syllabus of Boumediene]:

(b) Historically, Congress has taken care to avoid suspensions of the writ [of habeas corpus]. [...] In contrast, Congress intended the DTA [post-Rasul Detainee Treatment Act] and the MCA [post-Hamdan Military Commissions Act] to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7′s jurisdiction-stripping language, from the DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either Act. [...]

(c) This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289 , and the habeas court must have the power to order the conditional release of an individual unlawfully detained. But more may be required depending on the circumstances. Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ, or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. In re Yamashita, 327 U. S. 1 , and Ex parte Quirin, 317 U. S. 1 , distinguished. Pp. 49–57.

(d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64.

That’s a Supreme Court decision, authorizing the filing of writs of habeas corpus in U.S. courts by potential future Prisoners of War (and by existing, claimed non-POWs detained in Guantanamo), that may well never have needed to come into existence, if the U.S. military had simply been allowed to follow, or had insisted upon following, its own time-tested regulations designed to faithfully implement Article 5 of the Third Geneva Convention Relative to the Treatment of Prisoners of War.

Yet the D.C. Circuit and D.C. District remain today the sole lower courts with jurisdiction over questions of indefinite “AUMF-authorized” detention of non-POW-by-default/uncharged/unconvicted foreign nationals ordered detained by presidential/military fiat alone since 2001. And, as I spelled out here, the D.C. Circuit remains an appellate court bench of judges very much in sympathy with Lindsey Graham’s despotic, law of nations-spurning views on unchecked presidential detention authority, despite having had their views comprehensively repudiated by the Supreme Court in Boumediene.

So, on the one hand, we have only slight and tenuous independent judiciary-enforced limits on presidential detention authority under the 2001 AUMF, post-Boumediene, which are rapidly being erased altogether this year by judges on the D.C. Circuit Court of Appeals, and, on the other, we have the original understanding of the 2001 AUMF by Members of Congress who passed it, provided that this description of the AUMF’s legitimate targets in the recent ACLU/CCR reply brief on behalf of Anwar Al-Awlaki is accurate:

In addition to being constrained by the laws of war, by its plain terms the AUMF also requires a nexus to the individuals and organizations responsible for the September 11 attacks.31 While Al-Qaeda and the Taliban fall under this rubric, AQAP is a separate and distinct group that is not known to have any actual association with Al-Qaeda, whether in terms of command structure or activities, and no connection to September 11. See id. ¶ 13; see also, e.g., Hamlily, 616 F. Supp. 2d at 75 n.17 (holding that “‘[a]ssociated forces’ do not include terrorist organizations who merely share an abstract philosophy or even a common purpose with al Qaeda – there must be an actual association in the current conflict with al Qaeda or the Taliban”). Thus, the use of force against AQAP is not authorized by the AUMF.

[Footnote 31:] The legislative history confirms that such a nexus is required. See, e.g., 147 Cong. Rec. S9417 (Sen. Feingold) (AUMF is “appropriately limited to those entities involved in the attacks that occurred on September 11″) (daily ed. Sept. 14, 2001); id. at S9416 (Sen. Levin) (“[The AUMF] is limited to nations, organizations, or persons involved in the terrorist attacks of September 11. It is not a broad authorization for the use of military force against any nation, organization, or persons who were not involved in the September 11 terrorist attacks.”). Moreover, President Bush specifically proposed – and Congress rejected – an earlier version of the AUMF that would have authorized the President to use force to “deter and pre-empt any future acts of terrorism or aggression against the United States” that are unrelated to the September 11th attacks. Richard F. Grimmett, Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History, CRS Report for Congress (Jan. 16, 2007).

While the government’s claimed authority for targeting Plaintiff’s son appears to be premised largely on a purported relationship between AQAP and Al-Qaeda, evidence of this crucial link appears nowhere in its declarations. [...] In the face of the evidence provided by the Plaintiffs as to the nature of AQAP, the situation in Yemen, and the non-existence of an armed conflict, the government’s bald assertion to the contrary cannot stand. See generally Haykel Decl.; O’Connell Decl.

The incumbent President, however, apparently disagrees with that interpretation of the 2001 Congressional AUMF – and his broader claimed authority to detain (if not yet to kill) has been unquestioningly backed up by the D.C. Circuit – judging by the Obama administration language submitted in early 2009 to Judge Bates, which specified the President’s understanding of the authority under which the prisoners at Guantanamo Bay are being held by the U.S. military at his command:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

Does that latter (“also”) claimed presidential detention authority (in which no connection to 9/11, or even to post-2001 activity, is apparently required) flow from the 2001 AUMF, or from the U.N.-sanctioned NATO ISAF mission, or from something else?? [Notably, the favored view of a few of the most extreme D.C. Circuit appellate judges - part of the court that has unquestioningly adopted as its own the administration's description of its unilateral detention powers - is that such unilateral presidential detention authority flows directly from a mid-1990s hostile declaration made against the United States by Osama bin Laden.]

That question, a form of which D.C. District Judge John Bates should soon be confronting in the Al-Awlaki case – provided that Bates doesn’t instead block the case from receiving a hearing on its merits in our independent Judicial Branch of government, by dismissing it at the threshold, as the government has asked him to do (and as Bates obligingly did for the DOJ with the Valerie Plame Wilson lawsuit against the government leakers of her covert CIA affiliation) – in the profound related matter of the source(s) and limits of presidential power to kill Al-Awlaki (and others) in the absence of armed conflict (though the government is speciously citing to the law of war in Al-Awlaki’s case, despite the fact that neutral, sovereign Yemen is now planning to re-arrest and try Al-Awlaki for domestic criminal offenses in Yemen), is a matter of utmost importance that is long overdue for sober, honorable consideration and public examination and debate in the United States Congress.

[P]re-existing Army Regulation 190-8 mandates procedures that lawfully honor and implement Article 5 of the Third Geneva Convention, but those regulations have been violated by the U.S. military (and CIA) for every prisoner, save one, ever held at Guantanamo Bay Naval Station since 9/11/2001.

[...]

What Navy Captain Keith Allred, Hamdan’s military commission judge, knew in late 2007 is that a panel of military appellate judges on the . . . Court of Military Commission Review (CMCR) had just indicated in another case that the . . . “Combatant Status Review Tribunals” (CSRTs) did not “satisfy Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War.”

Despite the fact that direct and indirect indications of the longstanding, ongoing violations of this nation’s obligations under Article 5 (among others) of the Third Geneva Convention are embedded throughout the federal court opinions of Guantanamo-related litigation, those violations to this day remain unexamined, uncorrected, and unaccounted for by Congress, its Armed Services Committees, the Department of Justice, or the military chain of command.

Some of the more-direct examples of such indications are in this November 8, 2004 ruling by now-retired federal district Judge James Robertson (himself a veteran of the U.S. military), whose decision in Hamdan – though overturned by a D.C. Circuit panel decision authored by A. Raymond Randolph, that was joined by Judges John Roberts, Jr. and Stephen Williams – was held correct and reinstated in June, 2006 as to its main holdings, by the Supreme Court in Hamdan:

Because the Geneva Conventions were written to protect individuals, because the Executive Branch of our government has implemented the Geneva Conventions for fifty years without questioning the absence of implementing legislation, because Congress clearly understood that the Conventions did not require implementing legislation except in a few specific areas, and because nothing in the Third Geneva Convention itself manifests the contracting parties’ intention that it not become effective as domestic law without the enactment of implementing legislation, I conclude that, insofar as it is pertinent here, the Third Geneva Convention is a self-executing treaty.11 I further conclude that it is at least a matter of some doubt as to whether or not Hamdan is entitled to the protections of the Third Geneva Convention as a prisoner of war and that accordingly he must be given those protections unless and until the “competent tribunal” referred to in Article 5 concludes otherwise. It follows from those conclusions that Hamdan may not be tried for the war crimes he is charged with except by a court-martial duly convened under the Uniform Code of Military Justice.

Judge Robertson also directly and specifically addressed the then-new CSRTs in his November, 2004 ruling:

Moreover (as the court was advised for the first time at oral argument on October 25, 2004) a Combatant Status Review Tribunal (CSRT) found, after a hearing on October 3, 2004, that Hamdan has the status of an enemy combatant “as either a member of or affiliated with Al Qaeda.” 10/25/04 Tr. at 12.

Article 5 of the Third Geneva Convention provides:

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 categories enumerated in Article 4 such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

The Army’s regulation [190-8] is in keeping with general international understandings of the meaning of Article 5. See generally Generals and Admirals Amicus Brief at 18-22.

[...]

The government’s legal position is that the 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.

The Supreme Court, unfortunately, declined to decide the Article 5 question that Judge Robertson had wisely addressed below, in its 2006 Hamdan decision authored by Justice John Paul Stevens (quoting Footnote 61 of Hamdan):

61 Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt” whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.” 6 U. S. T., at 3324. See also Headquarters Depts. of Army, Navy, Air Force, and Marine Corps, Army Regulation 190.8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997), App. 116. Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13 Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.

But someone on the Supreme Court had already considered that issue in some detail. Earlier in 2004 (before Judge Robertson’s November decision in Hamdan), now-retired Justice David Souter – in his concurring opinion, joined by Justice Ruth Bader Ginsburg, in the Supreme Court’s June, 2004 Hamdi decision – noted that:

By holding [U.S. citizen Yaser Hamdi] incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. See Brief for Respondents 24; White House Press Release. This treatment appears to be a violation of the Geneva Convention provision that even in cases of doubt, captives are entitled to be treated as prisoners of war “until such time as their status has been determined by a competent tribunal.” Art. 5, 6 U. S. T., at 3324. The Government answers that the President’s determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi’s status and removes any doubt that would trigger application of the Convention’s tribunal requirement. See Brief for Respondents 24. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Reg. 190.8, §§1.5, 1.6 (1997), adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual’s status. See, e.g., id., §1.6 (“A competent tribunal shall be composed of three commissioned officers”; a “written record shall be made of proceedings”; “[p]roceedings shall be open” with certain exceptions; “[p]ersons whose status is to be determined shall be advised of their rights at the beginning of their hearings,” “allowed to attend all open sessions,” “allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal,” and to “have a right to testify”; and a tribunal shall determine status by a “[p]reponderance of evidence”). One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an “[i]nnocent civilian who should be immediately returned to his home or released.” Id., 1.6e(10)(c). The regulation, jointly promulgated by the Headquarters of the Departments of the Army, Navy, Air Force, and Marine Corps, provides that “[p]ersons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed.” Id., §1.6g. The regulation also incorporates the Geneva Convention’s presumption that in cases of doubt, “persons shall enjoy the protection of the . . . Convention until such time as their status has been determined by a competent tribunal.” Id., §1.6a. Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority.

Justice Souter’s important analysis of Article 5 was not a part of the plurality opinion of Hamdi in 2004 because, declining to address a primary cause of the failures and abuses of Guantanamo’s armed conflict law-justified detentions, Justice Sandra Day O’Connor, author of the Hamdi opinion with which Souter was concurring, likewise ducked the Article 5 question (quoting Footnote 2 of Hamdi):

Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status.