Tài liệu BEYOND THE LAW The Bush Administration’s Unlawful Responses in the “War” on Terror pptx

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BEYOND THE LAW
The Bush Administration’s Unlawful
Responses in the “War” on Terror
JORDAN J. PAUST
University of Houston Law Center
iii
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
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First published in print format
ISBN-13 978-0-521-88426-6
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© Jordan J. Paust 2007
2007
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ermission of Cambrid
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ISBN-10 0-521-71120-7
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Published in the United States of America by Cambridge University Press, New York
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CONTENTS
Preface page ix
Acknowledgments and Permissions xiii
ONE
.Executive Plans and Authorizations to Violate International
LawConcerning Treatment and Interrogation of Detainees 1
A. Introduction 1
B. The AfghanWar,LawsofWar,and Human Rights 1
C. Executive Plans and Authorizations 5
D. Illegal Interrogation Tactics 12
E. The Executive Is Bound by International Law 20
F. Con clusion 23
TWO
.Additional Revelations Concerning Treatment, Secret
Detentions, and Secret Renditions 25
A. Introduction 25
B. Actors, Authorizations, Abetments, and Public Paper Trails 26
C. The We Do Not “Torture” Ploy and Refusals to Prosecute 30
D. Secret Detentions, Secret Renditions, and Forced
Disappearance 34
1.DefinitionsofForcedDisappearance in Violation of
International Law 36
2.Impermissibility of Secret Detentions Under International
Law 37
E. Mangling Military Manuals 42
F. Th e 2005 Detainee Treatment Act and Other Binding Laws of
the United States 44
G. Conclusion 45
v
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CONTENTS
THREE.War and Enemy Status 47
A. Introduction 47
B. The United States Cannot Be at “War” with al Qaeda
or “Terrorism” 48
C. The Status of Various Detainees and the Legal Test for
Combatant Status 50
D. Combatant Immunity 53
E. Legal Tests for Prisoner of War Status 56
F. Da ngerous Consequences Can Arise iftheLegalTests
Are Changed 57
G. The Misconceived Military Commissions Act of 2006 58
H. Conclusion 63
FOUR.Judicial Power to Determine the Status and Rights of
Persons Detained Without Trial 65
A. Introduction 65
B. Propriety ofDetention and Necessity of Judicial Review Under
International Law 67
1.Human Rights Standards in Time of Peace, National
Emergency, or War 67
a. Permissible Detention Under Human Rights Law 67
b. Judicial Review of Detention Under Human Rights Law 68
2.DetentionUnder the Laws of WarDuringTimes of
International Armed Conflict 69
a. Detention of Prisoners of War 69
b. DetentionofOtherPersons 70
c. Judicial Review of Detention and Status Under the Laws
of War 71
C. Judicial Power and Responsibility to Determine the Status and
Rights of Detainees 71
1.TheApplicability of International Law as Law of the United
States 71
2.Judicial Power and Responsibility to Determine Status and
Rights 73
3.TwoCasesBeforetheSupreme Court’s Decision in Hamdi 76
a. Affirming Judicial Responsibility 76
b. Functionally Abdicating Responsibility to Provide a
“Meaningful Judicial Review” 77
D. The Supreme Court’s Decision in Hamdi 80
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vii
E. Habeas Corpus Review 81
1.LowerFederal Court Decisions Concerning Habeas Corpus 81
2.TheSupremeCourt’s Decision in Rasul 84
F. Con clusion 84
FIVE.Executive Claims to Unchecked Power 86
A. Legal Constraints on the Commander in Chief Power 86
B. The Commander-Above-the-Law Theory 89
C. Misinterpretations of the 2001 Authorization for Use of
Military Force 91
D. The Malignant Military Commissions Act of 2006 92
E. Conclusion 98
SIX.Antiterrorism Military Commissions 100
A. The 2001 Executive Military Commissions Order 100
B. Rules of Evidence and Procedure for the 2001 Commissions 112
1.SeveralSerious Violations Had Been Continued 113
2.DenialoftheRighttoJudicial Review of Detention 114
3.DenialoftheRighttoReviewbyaCompetent,Independent,
and Impartial Court 116
4.DenialoftheRighttoTrialBeforeaRegularly Constituted,
Competent, Independent, and Impartial Tribunal
Established by Law 117
5.DenialoftheRightstoFair Procedure and Fair Rules
of Evidence 118
6.DenialoftheRighttoCounsel and to Effective
Representation 119
7.Conclusion 119
C. A Regularly Constituted Court with Fair Procedures: The
Supreme Court’s Decision in Hamdan 120
1.ProblemsConcerning Establishment of the Commissions 120
2.ProceduralViolations 121
D. The 2006 Military Commissions 127
E. Conclusion 131
Notes 133
Name Index 301
SubjectIndex 303
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PREFACE
Within a few months after al Qaeda’s unlawful terroristic attacks inside the
United States on September 11, 2001, the Bush administration embarked
on a “dirty war” response to terrorism involving methods of detention,
treatment, and interrogation that Vice President Cheney had generalized
as responses on “the dark side.” The “dirty war” would involve at least
cruel and inhumane treatment of captured human beings and the forced
disappearance of various detained persons, despite the fact that cruel and
inhumane treatment and forced disappearance are well-known examples
of conduct that is absolutely proscribed under several treaties of the United
States and customary international law. In fact, both forms of manifest
illegality are among recognized peremptory prohibitions of the highest
sort that apply in all contexts without exception.
The “dark side” methods, Cheney had argued, should be “done quietly,”
but they were used so widely and for so many years that complete secrecy
was not possible. Opposition by various U.S. military, Federal Bureau of
Investigation (FBI), and Central Intelligence Agency (CIA) personnel con-
tributed to increased public exposure. When pictures of outrageous abuse
of detainees at Abu Ghraib, Iraq, became widely publicized, the secrecy of
Executive plans and authorizations, despite vigorous denial of their exis-
tence, began to unravel. Soon a series of classified memos and letters were
leaked that demonstrated the role that several lawyers and others had played
in attempts to deny international legal protections to al Qaeda and Taliban
detainees, to reclassify their status,and to subject them to unlawful coercive
interrogation tactics with alleged impunity. Yet, even as these and other
evidence of a common plan had been disclosed, the denials, falsehoods,
and misdirections continued – a few bad apples at the bottom; we do not
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“torture”; conduct depicted in the Abu Ghraib photos (e.g., stripping per-
sons naked, hooding, and use of dogs) was not approved; everyone held at
Guantanamo has been properly screened and they are all “terrorists”; there
are no secret detention sites; water-boarding is a professional interrogation
technique.
One of the memos was a February 7, 2002,memorandum by President
Bush that authorized the denial of protections under the 1949 Geneva Con-
ventions to every member of al Qaeda and the Taliban. The existence of
other presidential memos and directives authorizing at least cruel and inhu-
mane treatment and the secret detention and disappearance of human
beings was reported in 2004,butgreater details had emerged by the time
President Bush publicly admitted in September 2006 that, indeed, “tough”
interrogation tactics and secret detentions had been approved and would
be continued by the CIA. These and other actions by the Bush administra-
tion sparked debate and litigation with respect to several matters of great
significance under international, constitutional, and federal statutory law.
In addition to creating individual civil and criminal responsibility for vio-
lations of international law, dirty war tactics have degraded this country,
its values, and its influence. They have degraded those who used them and
degraded those who did not oppose their use. As patriots of democratic
freedom understand, they threaten our democracy and the rule of law.
This book provides a detailed exposition of the types of violations of
treaties of the United States and customary international law authorized
and abetted by previously secret memos, letters, directives, authorizations,
and orders of President Bush, Secretary of Defense Rumsfeld, White House
Counsel Gonzales, and various other lawyers and officials within the Bush
administration – especially in Chapters One and Tw o.These chapters
demonstrate why several of the claims in such memos were in serious and
manifest error; what type of illegal authorizations and orders were actu-
ally given by the President, the Secretary of Defense, and various military
commanders at Guantanamo and in Iraq; what type of other memos and
authorizations existed in support of a common plan to violate the Geneva
Conventions, the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, and human rights law; what type
of illegal interrogation tactics were approved and used; what type of illegal
transfers of persons occurred; and what type of unlawful secret deten-
tions occurred. Chapter One also provides detailed attention to various
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laws of war and human rights relevant to treatment and interrogation of
detained persons and discusses why relevant rights and duties are absolute
and remain so regardless of claims by the President and others to deny
coverage to alleged terrorists and to all enemy combatants; why there can
be leader responsibility for dereliction of duty in addition to the respon-
sibility of direct perpetrators, aiders and abettors, and those who issued
illegal authorizations or orders; and why under our Constitution and ven-
erable judicial decisions and recognitions the President and all within the
Executive branch are and must continue to be bound by the laws of war and
other relevant international law. As noted, during the long history of the
United States, no other President is known to have authorized violations
of the laws of war concerning the transfer, treatment, and interrogation of
human beings.
Chapter Two documents additional roles played by the President and sev-
eral members of his administration and additional insight into the history
of the inner-circle decisions to use the “dirty war” responses to terrorism
that have already partly shaped the President’s legacy. It also pays further
attention to the details of relevant international legal restraints, the ulti-
mate defeat of those within his administration who sought to make room
for “dirty war” tactics in U.S. military manuals, the role of the McCain
Amendment attached to the 2005 Detainee Treatment Act, and the role of
other binding laws of the United States.
Chapter Threeprovides detailed inquiry into actualtreaty-based and cus-
tomary international legal tests for combatant status, combatant immunity,
and prisoner of war status that should be applied with respect to persons
detained during an actual war, such as those in Afghanistan and Iraq. These
are contrasted with some of the claims made by the Executive to deny any
such status and resultant protections to members of the regular armed
forces of the Taliban – claims that are not in the interest of U.S. and foreign
military personnel who might be captured todayorinanyfuture war. Atten-
tion is also paid to the fact that the United States cannot be at “war” with
al Qaeda as such or with a tactic of “terrorism,” certain dangers that can
arise if the tests are changed, and relevant misconceptions and confusion
evidentinthe2006 Military Commissions Act.
The fact that the President is not above the law; that Executive decisions
to detain persons, to decide their status, and to mistreat them are subject to
judicial review even during actual war; and that the President’s commander
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in chief power is subject to certain restraints by Congress and to absolute
restraints under the laws of war, among other international laws, provide
general bases for the detailed inquiry set forth in Chapters Four and Five.
Like Section E of Chapter One, these chapters provide pivotal details of law
and the numerous judicial decisions that are in complete contrast to the
Bush administration’s unconstitutional and autocratic commander-above-
the-law theory that the President should be able to engage in a “dirty war”
unbound by any inhibiting domestic or international law and free from
either any or any meaningful judicial supervision. Chapter One, Section
E;ChapterTwo,SectionsC.2 and D; and Chapter Five, Section A provide
the most thorough documentation of relevant trends in judicial decision
known to date concerning such matters. Because international law is part
of the law of the United States, has constitutional moorings, is relevant to
the limits of presidential and congressional power, and can influence the
content ofconstitutional and statutory law, some of the legal norms and
trendsinjudicialdecision identified are ofinterrelatedandhistoric concern.
They also should provide a basis for analysis of lawful responses to terrorism
in the future and law’s limitations on Executive power. During war and
threats to national security, it is often the judiciary that has maintained the
line between lawful and unlawful exercises of Executive power, a line that
the Supreme Court maintained in Rasul, Hamdi, and Hamdan.
Chapter Six provides legal analysis of the special military commissions
that the Bush administration contemplated for use in a “war” against al
Qaeda and the Taliban. Serious shortfalls in the President’s 2001 Military
Commissions Order and 2002 Department of Defense Rules of Procedure
and Evidence are analyzed along with the Supreme Court’s landmark deci-
sion in Hamdan concerning the illegal structure of the military commis-
sions and their unlawful procedures. Finally, structural and procedural
problems with the commissions envisioned in the 2006 Military Com-
missions Act are addressed along with the reasons why Supreme Court
decisions require that the Act be interpreted wherever possible in ways that
comply with international law and, in any event, require that treaty law of
the United States have primacy.
In this world, dark enough in places, we need not walk against the light.
The “dirty war” and its dirty consequences should end.