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

See also: Extrajudicial detention

See also: Intelligence interrogation, U.S., George W. Bush Administration

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." This article is focused on taking and holding captives outside the judicial system; it does not address the details of Intelligence interrogation, U.S. generally, or Intelligence interrogation, U.S., George W. Bush Administration. It includes detainees taken on a battlefield, by extraordinary rendition, and in the United States.

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, 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, "I find consistent with section 836 of title 10, United States Code, 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.

Under the Bush Administration, the United States interpreted its obligations under the Convention against Torture to be applicable only to activities taken in U.S. territory, not in foreign operations. 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."

Review and disclosure policy

The policy of the Bush Administration on captives apprehended during the war on terror was to keep their identities and locations secret.

From 2002 through 2006, the Associated Press, the Washington Post, and various non-governmental organizations tried to identify the detainees held at Guantanamo and at other extrajudicial detention facilities , after reports that some had apparently disappeared. The Associated Press issued many Freedom of Information Act requests, requesting documentation of the captives' identities. The Department of Defense denied these requests, arguing that they infringed the captives' rights to privacy, or fell under national security where the state secrets privilege could be invoked.

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 number of cases took place before the Bush Administration. The cases of ex parte Quirin and Johnson v. Eisentrager are key parts of Bush Administration legal opinions,

Some of the Bush administration combinations include:

Date	Citizenship	Place of capture	Captured by	Detainer and place	Person(s) and cases	Comments
2004	Australian and Kuwaiti	Afghanistan	U.S. military	U.S. military at Guantanamo	Rasul et al.; Rasul v. Bush	SCOTUS granted habeas
2004	U.S.	Aghanistan	U.S. military	U.S. military (Bagram?)	Hamdi et al.; Hamdi v. Rumsfeld	SCOTUS ordered trial
2006	Yemeni citizen	Aghanistan	Afghan troops, turned over to U.S.	U.S. troops	Hamdan et al.; Hamdan v. Rumsfeld	SCOTUS ordered trial

Legislation

As a result both of court cases and legislative review, two laws were passed refining detention authority, beginning the Detainee Treatment Act in 2004. This set conditions of detention.

After Hamdan v. Rumsfeld said that Congress had to authorize certain military trials, the Military Commissions Act of 2006 was passed.