Steve Buyer: “I think this is an area we have to be pretty careful about. This is a very serious question, and, in fact, it raises…”

“I think this is an area we have to be pretty careful about. This is a very serious question, and, in fact, it raises grave constitutional questions that are unsettled, the principles of separation of power. But with that aside, it also gets kind of confusing. So let us go back to not only our own Constitution, but also the Geneva Conventions. The Geneva Conventions under Article 5 say if one captures an individual and they know who they are, then they are automatically by the capturing power given POW status. If there is any doubt with regard to their status, under the Geneva Conventions, the capturing power then is to conduct what are called Article 5 tribunals. What has happened here is when there is no doubt of the status of the individual, the executive branch has made the decision, then obviously they are not a POW; so they are not afforded the protections of the Geneva Conventions. And if they are not afforded in a tribunal Article 5 because their status is not in doubt, there is a term of art that has been used. They are called an enemy combatant, but they also can be called security detainees, unprivileged belligerents, unlawful combatants. This is a very dangerous area what this amendment tries to do. It tries to dance into the area of the executive branch and say we cannot classify individuals as to these types of things. Mr. Chairman, we are in a very unsettled part of the law.…”