In 2009 the Obama administration did do away with the term "enemy combatant" looked it up on Wikipedia,
however, I am not sure how that changed the status of prisoners so I won't go into that.
This is why there was an uproar over classifying these guys as unlawful-combatants because by doing so, the argument went, they could be held indefinitely.
The point is that they didn't automatically revert to POW status after a set period of time without being tried, and unless the Obama Administration reclassified them as POWs (a question I am unable to answer) there would be no obligation to release them at the end of the war.
Shortly after the attacks against the United States on September 11, 2001, Congress passed and President George W. Bush signed the Authorization for Use of Military Force. The AUMF provides:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001); see U.S. Const. art. I, § 8.
This Court has stated that the AUMF authorizes the President to detain enemy combatants, which includes (among others) individuals who are part of al Qaeda, the Taliban, or associated forces. See Hussain v. Obama, 718 F.3d 964, 967 (D.C. Cir. 2013).1 Detention under the AUMF may last for the duration of hostilities. See Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004); Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir. 2011).
1 As this Court has explained in prior cases, the President may also detain individuals who substantially support al Qaeda, the Taliban, or associated forces in the war. The National Defense Authorization Act for Fiscal Year 2012 expressly permits military detention of a "person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." Pub. L. No. 112-81, § 1021, 125 Stat. 1298, 1562 (2011). And our earlier cases, citing the Military Commissions Act of 2009, permit military detention of a person who was part of or "purposefully and materially" supported al Qaeda, the Taliban, or associated forces in the war. Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (quoting 10 U.S.C. § 948a(7)); see Almerfedi v. Obama, 654 F.3d 1, 3 n.2 (D.C. Cir. 2011); Uthman v. Obama, 637 F.3d 400, 402 n.2 (D.C. Cir. 2011).
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....we are not talking about "guilt." This is not a criminal proceeding in which the Government asks a court to find Ali guilty and punish him for past behavior by sentencing him to a defined term of imprisonment. In other words, this is not a federal criminal trial or a military commission proceeding for war crimes. Rather, this case involves military detention. The purpose of military detention is to detain enemy combatants for the duration of hostilities so as to keep them off the battlefield and help win the war. Military detention of enemy combatants is a traditional, lawful, and essential aspect of successfully waging war. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004); WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 788 (rev. 2d ed. 1920) (military detention during wartime "is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character") (internal quotation marks and citation omitted). The standard of proof for military detention is not the same as the standard of proof for criminal prosecution, in part because of the different purposes of the proceedings and in part because military detention ends with the end of the war.
http://www.lawfareblog.com/wp-content/uploads/2013/12/2013-12-3-Ali-Opinion.pdf
Does anyone know if SCOTUS has ruled that Presidents can sign bills into law and then write at the bottom "This that and the other portions of this law do not apply to me", and thus make it so?
I've read somewhere that originally Bergdahl's captors only wanted cash, but I don't know if that has been substantiated.
The Taliban originally demanded $1 million[43] and the release of 21 Afghan prisoners and Aafia Siddiqui, a Pakistani scientist convicted in a U.S. court on charges of attempted murder of U.S. soldiers in Afghanistan. Most of the Afghan prisoners sought were being held at Guantanamo Bay.[44][45] The Taliban later reduced its demand to five Taliban prisoners in exchange for Bergdahl's release.[46]
see a hell of a lot more evidence before I thought this theory had any legs.
And a third reason was probably the desire not to dwell on the vital and hair-raising fact that the President of the United States, “the leader of the free world” and all that jazz, is nothing more than a demented half-wit.
Because your speculating on an alleged desertion is unseemly? How about waiting for charges at least? Fox has no standing to be indicting anyone.
How about this?
Quote:Soldier Attacking Bowe Bergdahl Left Army with ‘Other Than Honorable’ Discharge
Posted by: Bob Cull in Noteworthy News June 6, 2014
Joshua Korder, who once served in the same unit as Bowe Bergdahl — and who made the false claim in an interview on CNN that at least six good men had died searching for Bergdahl – is not the squeaky clean all-American soldier that he presented himself to be. It turns out that Korder has some skeletons in his own closet as well.
It turns out, Korder was recently discharged under “other than honorable” conditions.
There are many reasons that one might receive such a discharge and it’s not the same as a “dishonorable discharge” — which is reserved for the most serious violations of conduct and military law — however, it does indicate that the recipient was no longer welcome in the military and would not be accepted if he or she wished to re-enlist.
With this new information is more damning evidence against Korder, who has already been shown to be a liar when he made his false accusations that Bergdahl was responsible for the deaths of six soldiers who were looking for him.
The army has said that no patrol was sent out for the specific purpose of finding Bergdahl, but that the regular patrols that would have gone out (whether there was a missing man or not) were told to keep an eye out for him as they went about their duties. In other words, those soldiers died on routine patrols in an area that is known to be a hotbed of Taliban activity.
On Monday Korder told CNN’s”The Lead with Jake Tapper”:
“He is at best a deserter, and at worst a traitor…Any of us would have died for him while he was with us, and then for him to just leave us like that, it was a very big betrayal…I don’t think that I could have continued to go on without being able to share with you and … the people the true things that happened in this situation. Because if you guys aren’t made aware of it, it will just go on, and he’ll be a hero, and nobody will be able to know the truth.”
In an apparent attempt to make himself seem more selfless, Korder admitted that speaking to the press could cause him more problems with the Army since he and the other members of his unit had signed non-disclosure agreements vowing not to speak of Bergdahl’s disappearance.
Other Than Honorable (OTH)
An OTH is a form of administrative discharge. This type of discharge represents a departure from the conduct and performance expected of all military members. It can also be given as the result of certain civil hearings.
Source
LAWRENCE: Well, most everyone you know gets out of the military has an honorable discharge. That's the most common one. Then there are general discharges for things like a medical condition condition. But then below that, there are these so-called bad discharges. People call them bad paper. An other than honorable discharge is an administrative discharge where your command can essentially kick you out. You sign off on it and say in lieu of court martial, et cetera. It can be for something like failing a drug test, lapses in military good order and discipline. Below that, there's a bad conduct discharge, which is for pretty serious crimes. And then the worse, really, is a dishonorable discharge, which is reserved for things like treason and spying.
Source
I got a oth in 2009 after 6 years of active duty service 11bravo Afghan vet. I got a oth for fighting. I got a re code of 3. If you get a re code of 1 or 3 wit a oth then you will be fine with a OTH with a re code of 1 or 3 you can re enlist into the military etc I'm a cop and had no problem gaining employment with my Police department. They wanted me to explain why and what happened and I was honest and told them, 3 months latter i was at police academy in Springfield Illinois. -Eric T -
Source
The third type of administrative discharge, other than honorable, is equivalent to a bad-conduct discharge.
A service member might receive type of discharge if he is convicted by a civilian court for a crime or engages in a pattern of misconduct involving many minor offenses. In my experience, those offenses generally include disrespecting or disobeying an order, or fraudulent enlistment — such as if you concealed a prior felony conviction.
Source
Alvaro joined the Army at age 18 in 2008. In Afghanistan in 2009, he was hit by multiple bomb blasts, including one that threw him across a road like a lawn dart. Sophisticated armor helped him escape with just bruises, but the blasts battered his brain. Ever since, he has been hit with heart spasms and seizures.
Alvaro is in many ways the typical modern disabled veteran. He survived combat with barely a scratch but later was diagnosed with what have become the most common wounds of a decade of war — traumatic brain injury and post-traumatic stress disorder, which together likely affect more than half a million veterans of Iraq and Afghanistan, the Department of Defense said.
What happened when he came home is increasingly typical, too. At Fort Carson, the damaged soldier racked up punishments for being late to formation, missing appointments, getting in an argument and not showing up for work. These behaviors can be symptoms of TBI and PTSD, and Army doctors recommended Alvaro go to a special battalion for wounded warriors. Instead, his battalion put him in jail, then threw him out of the Army with an other-than honorable discharge that stripped him of veterans benefits. He was sent packing without even the medicine to stop his convulsions.
"It was like my best friend betrayed me," Alvaro said at the hospital, his speech as slow as cold oil. "I had given the Army everything, and they took everything away."
After the longest period of war in American history, more soldiers are being discharged for misconduct than at any time in recent history, and soldiers with the most combat exposure are the hardest hit. A Gazette investigation based on data obtained through the Freedom of Information Act shows the annual number of misconduct discharges is up more than 25 percent Army-wide since 2009, mirroring the rise in wounded. At the eight Army posts that house most of the service's combat units, including Fort Carson in Colorado Springs, misconductdischarges have surged 67 percent. All told, more than 76,000 soldiers have been kicked out of the Army since 2006. They end up in cities large and small across the country, in hospitals and homeless shelters, abandoned trailers and ratty apartments, working in gas fields and at the McDonald's counter. The Army does not track how many, like Alvaro, were kicked out with combat wounds.
Source
Today I have signed into law H.R. 3304, the "National Defense Authorization Act for Fiscal Year 2014." I have signed this annual defense authorization legislation because it will provide pay and bonuses for our service members, enhance counterterrorism initiatives abroad, build the security capacity of key partners, and expand efforts to prevent sexual assault and strengthen protections for victims.
Since taking office, I have repeatedly called upon the Congress to work with my Administration to close the detention facility at Guantanamo Bay, Cuba. The continued operation of the facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.
For the past several years, the Congress has enacted unwarranted and burdensome restrictions that have impeded my ability to transfer detainees from Guantanamo. Earlier this year I again called upon the Congress to lift these restrictions and, in this bill, the Congress has taken a positive step in that direction. Section 1035 of this Act gives the Administration additional flexibility to transfer detainees abroad by easing rigid restrictions that have hindered negotiations with foreign countries and interfered with executive branch determinations about how and where to transfer detainees. Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. Of course, even in the absence of any statutory restrictions, my Administration would transfer a detainee only if the threat the detainee may pose can be sufficiently mitigated and only when consistent with our humane treatment policy. Section 1035 nevertheless represents an improvement over current law and is a welcome step toward closing the facility.
In contrast, sections 1033 and 1034 continue unwise funding restrictions that curtail options available to the executive branch. Section 1033 renews the bar against using appropriated funds to construct or modify any facility in the United States, its territories, or possessions to house any Guantanamo detainee in the custody or under the control of the Department of Defense unless authorized by the Congress. Section 1034 renews the bar against using appropriated funds to transfer Guantanamo detainees into the United States for any purpose. I oppose these provisions, as I have in years past, and will continue to work with the Congress to remove these restrictions. The executive branch must have the authority to determine when and where to prosecute Guantanamo detainees, based on the facts and circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security interests. Moreover, section 1034 would, under certain circumstances, violate constitutional separation of powers principles.
The detention facility at Guantanamo continues to impose significant costs on the American people. I am encouraged that this Act provides the Executive greater flexibility to transfer Guantanamo detainees abroad, and look forward to working with the Congress to take the additional steps needed to close the facility. In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.
BARACK OBAMA
The White House, December 26, 2013.
P.S. A terminological point that most Lawfare readers will already understand: When the President “disregards” a statute on constitutional grounds he is not “violating” the statute if his constitutional argument is sound. CNN legal analyst Jeffrey Toobin stated today that President Obama “clearly broke the law” when he acted contrary to Section 8011, the notice requirement on transfers. “The law is on the books, and he didn’t follow it,” Toobin added. The last statement is true but it does not follow that the President violated the law. It all depends on the validity of the President’s constitutional argument. If the statute impinged on an exclusive presidential power, the president properly disregarded it and did not violate it. We have not yet (and likely will not see) the Executive branch’s analysis of the constitutional question, assuming there was one. But, to repeat, presidential disregard of a statute is not a violation of the statute if the statute is contrary to Article II. For further explanation, see this letter by Walter Dellinger.
UPDATE to the P.S.: Someone pointed me to the complete transcript of the interview with Toobin, and two points are of note. First, Geoffrey Corn, who was also part of the interview, made the point that “the Constitution vests the president with the exclusive authority as commander-in-chief,” and that a law “that intrudes upon that authority, that detracts from his ability to perform his command function, is a law that candidly he shouldn’t comply with.” And second, Toobin, after noting that the President broke the law, acknowledged that “it may be that he was justified. It may be that the law is in fact unconstitutional.” Toobin should have made clear that non-compliance with an unconstitutional law is not breaking the law. But in any event, he is certainly right about this:
I think, as with most situations like this, it is somewhat a legal issue, but it’s mostly a political issue. There’s not going to be any lawsuit about this. Congress can’t sue the president for violating this aspect of the law. Congress will take action. They will hold hearings. They will express their outrage.
President Reagan initiated this practice in earnest, transforming the signing statement into a mechanism for the assertion of presidential authority and intent. President Reagan issued 250 signing statements, 86 of which (34%) contained provisions objecting to one or more of the statutory provisions
signed into law. President George H. W. Bush continued this practice, issuing 228 signing statements, 107 of which (47%) raised objections. President Clinton’s conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn,
President Clinton made aggressive use of the signing statement, issuing 381 statements, 70 of which (18%) raised constitutional or legal objections. President George W. Bush continued this practice, issuing 161 signing statements, 127 of which (79%) contain some type of challenge or
objection. The significant rise in the proportion of constitutional objections made by President George W. Bush was compounded by the fact that his statements were typified by multiple objections, resulting in more than 1,000 challenges to distinct provisions of law. Although President Barack Obama has continued to use presidential signing statements, the Obama
Administration has used the interpretive tools with less frequency than previous administrations—issuing 20 signing statements, of which 10 (50%) contain constitutional challenges to an enacted statutory provision
However, in analyzing the constitutional basis for, and legal effect of, presidential signing statements, it becomes apparent that no constitutional or legal deficiencies adhere to the issuance of such statements in and of themselves. Rather, it appears that the appropriate focus of inquiry in this context is on the assertions of presidential authority contained therein, coupled with an examination of substantive executive action taken or forborne with regard to the provisions of law implicated in a presidential signing statement. Applying this analytical rubric, it seems evident that the issues involved center not on the simple issue of signing statements, but rather on the view of presidential authority that governs the substantive actions of the administration in question. This report focuses on the use of signing statements by recent administrations, with particular emphasis on the Administrations of George W. Bush and Barack Obama.
Every indication is that they remain deeply committed
to Islam, and thus very likely to continue seeking
Allah's special reward for those who kill and maim
4:95
Sahih International
Not equal are those believers remaining [at home] - other than the disabled - and the mujahideen, [who strive and fight] in the cause of Allah with their wealth and their lives. Allah has preferred the mujahideen through their wealth and their lives over those who remain [behind], by degrees. And to both Allah has promised the best [reward]. But Allah has preferred the mujahideen over those who remain [behind] with a great reward -
I can accept a "signing statement" that indicates the President is not certain of the constitutionality of a given law, explains a reason for signing it, but reserves the right to challenge it on constitutional ground at a later date. (And by "challenge" I don't mean ignore.) Beyond this I am against them, no matter who the president might be.
From the initial briefings given to senior military and civilian officials in the past week, Sergeant Bergdahl, 28, in some ways seems healthier than expected. He suffers from skin and gum disorders typical of poor hygiene and exposure, but otherwise is physically sound, one official said. He weighs about 160 pounds on a 5-foot-9 frame, and is sleeping about seven hours a night.
He shows few if any signs of the malnourishment and other ailments that Obama administration officials said he was suffering when they saw a video of him that the Taliban made in December and released a month later — a video so alarming, American officials have said, it made his release an urgent priority.
Late Saturday, the F.B.I. said the Bergdahl family in Idaho had received threats. Federal agents, working with state and local law enforcement authorities, were “taking each threat seriously,” an F.B.I. statement said. Officials declined to give other details.
Officials would not disclose if Sergeant Bergdahl has made any special requests. One thing, however, that does rub him wrong is when hospital staff call him “sergeant,” the result of two automatic promotions while a captive.
“He says, ‘Don’t call me that,’ ” said one American official. “ ‘I didn’t go before the boards. I didn’t earn it.’ ”
