Extrajudicial detention, U.S., George W. Bush Administration

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. 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 have been repudiated by the Obama administration when it succeeded the Bush Administration, in January 2009.

Authority claimed

Besides direct military operations, President George W. Bush held that the AUMF permitted him to declare anyone, regardless of citizenship, an enemy combatant. The first key 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.

See Rumsfeld v. Padilla.

• Bybee memo to Gonzales
• Supreme Court
  • Hamdi v. Rumsfeld
  • Hamdan v. Rumsfeld
  • Rumsfeld v. Padilla

• Legislation
  • Detainee Treatment Act
  • Military Commissions Act

Significant cases

There have been an interesting set of 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:

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References

Date	Citizenship	Place of capture	Captured by	Detained by	Person(s) and cases	Comments
2002	U.S.	U.S.	U.S. FBI	U.S. military in U.S.	Jose Padilla, Rumsfeld v. Padilla	SCOTUS ordered trial
2004	U.S.	Aghanistan	U.S. Troops	U.S. troops (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