Extrajudicial detention, U.S., George W. Bush Administration: Difference between revisions
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| url = http://www.usdoj.gov/opa/documents/memostatusolcopinions01152009.pdf}}</ref> or were no longer claimed by the [[Obama administration]] when it succeeded the Bush Administration. | | url = http://www.usdoj.gov/opa/documents/memostatusolcopinions01152009.pdf}}</ref> or were no longer claimed by the [[Obama administration]] when it succeeded the Bush Administration. | ||
==Authority claimed== | ==Authority originally claimed== | ||
Besides direct military operations, President [[George W. Bush]] held that the AUMF permitted him to declare anyone, regardless of citizenship, an [[enemy combatant]]. Following a Presidential Proclamation 7463, "Declaration of National Emergency by Reason of Certain Terrorist Attack", this authority was first stated as published as a Military Order, <ref name=MO2001-11-13>{{citation | Besides direct military operations, President [[George W. Bush]] held that the AUMF permitted him to declare anyone, regardless of citizenship, an [[enemy combatant]]. Following a Presidential Proclamation 7463, "Declaration of National Emergency by Reason of Certain Terrorist Attack", this authority was first stated as published as a Military Order, <ref name=MO2001-11-13>{{citation | ||
| title=Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against | | title=Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against | ||
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==Significant cases== | ==Significant cases== | ||
In the past, there have been a number of cases involving extrajudicial detention by U.S. authorities, involving different combinations involving the citizenship of individuals detained, where they were apprehended, who detained them, and where they were subsequently detained. A basic first look shows some of the initial combinations: | |||
{| class="wikitable" | {| class="wikitable" | ||
Revision as of 13:20, 9 March 2009
- See also: User: Howard C. Berkowitz/EJUS
Most of the justification for extrajudicial detention and other unusual legal measures following the 9-11 attacks, by the George W. Bush Administration, derive authority from an interpretation on the Constitutional power of the President as Commander-in-Chief, and from the 2001 Authorization for the Use of Military Force (AUMF), as distinct from a declaration of war.[1] It authorizes the President "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."
Congress declared this was a statutory authorization consistent with the War Powers Resolution, although not superceding any of its other requirements. There has been little argument that this authorized combat operations in the Afghanistan War (2001-), although the authorization has been less clear both for the Iraq War. It, and legal opinions, also form the Administration's justification for a wide range of actions dealing with individuals and groups considered part of what it terms the war on terror.
A number of the authorities claimed either were repudiated by January 2009 opinions at the end of the Bush Administration, [2] or were no longer claimed by the Obama administration when it succeeded the Bush Administration.
Authority originally claimed
Besides direct military operations, President George W. Bush held that the AUMF permitted him to declare anyone, regardless of citizenship, an enemy combatant. Following a Presidential Proclamation 7463, "Declaration of National Emergency by Reason of Certain Terrorist Attack", this authority was first stated as published as a Military Order, [3] "I find consistent with section 836 of title 10, United States Code,[4] that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."
The first formal legal opinion supporting this position , dated August 1, 2002, was issued by Assistant Attorney General Jay Bybee, in the the Office of Legal Counsel of the U.S. Department of Justice went to White House Counsel Alberto Gonzales. [5]
Under the Bush Administration, the United States interpreted its obligations under the Convention against Torture[6] to be applicable only to activities taken in U.S. territory, not in foreign operations. [7] Not all transfers to a state are for purposes of interrogation, but sometimes simply to end the U.S. role of keeping an individual in custody. In some cases, while the U.S. is aware the country may torture, there are cases where the United States detains someone it strongly believes to be a terrorist, no state has filed criminal charges against him, and his state of nationality is much better positioned than the United States to interrogate him, given issues related to language and knowledge of networks, clan structures, and culture."[8]
Significant cases
In the past, there have been a number of cases involving extrajudicial detention by U.S. authorities, involving different combinations involving the citizenship of individuals detained, where they were apprehended, who detained them, and where they were subsequently detained. A basic first look shows some of the initial combinations:
| Date | Citizenship | Place of capture | Captured by | Detained by | Person(s) and cases | Comments |
|---|---|---|---|---|---|---|
| 1942 | German (military), in civilian clothes and with sabotage materials | U.S. beaches | U.S. military | U.S. military in U.S. | ex parte Quirin | SCOTUS approved military jurisdiction |
| 1950 | German (military) | China | U.S. military | U.S. military in China and Germany | Johnson v. Eisentrager | SCOTUS denied habeas |
| 2002 | U.S. | U.S. | U.S. FBI; turned over to military | U.S. military in U.S. | Jose Padilla, Rumsfeld v. Padilla | SCOTUS ordered trial |
| 2004 | Australian and Kuwaiti | Afghanistan | U.S. military | U.S. military at Guantanamo | Rasul v. Bush | SCOTUS granted habeas |
| 2004 | U.S. | Aghanistan | U.S. military | U.S. military (Bagram?) | Hamdi Hamdi v. Rumsfeld | SCOTUS ordered trial |
| 2006 | Yememi citizen | Aghanistan | Afghan troops, turned over to U.S. | U.S. troops | Hamdan v. Rumsfeld | SCOTUS ordered trial |
Precedent
- Ex parte Quirin [r]: A 1942 Supreme Court of the United States ruling that affirmed the right to try captured enemy personnel, who operated in civilian clothing, by a Presidentially appointed secret military tribunal [e]
Legislation
- Detainee Treatment Act [r]: A 2005 Congressional act specifying explicit standards for prisoners in the custody of the U.S. military [e]
- Military Commissions Act [r]: Add brief definition or description
References
- ↑ Joint Resolution: Authorization for Use of Military Force, September 18, 2001, Public Law 107-40 [S. J. RES. 23]
- ↑ Steven G. Bradley, Principal Deputy Attorney General, Office of Legal Counsel, U.S. Department of Justice (January 15, 2009), Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001
- ↑ [http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism], 13 November 2001
- ↑ President may prescribe rules, 10 USC 836, Article 36 of the Uniform Code of Military Justice
- ↑ Jay Bybee, Office of the Legal Counsel, U.S. Department of Justice, Memorandum for Alberto R, Gonzales, Counsel to the President, Re: Standards of conduct for interrogation under 18 USC [United States Code sections 2340-2340A]
- ↑ United Nations General Assembly (December 10, 1984), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Office of the High Commissioner on Human Rights, A/RES/39/46
- ↑ Ashley S. Deeks (June 2008), Avoiding Transfers to Torture, Council on Foreign Relations Press, ISBN 978-0-87609-417-4, p. 7
- ↑ Deeks, p. 18