Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror

by Jordan J. Paust

• ISBN13: 9780521711203
• ISBN10: 0521711207
• Format: Paperback
• Copyright: 2007-09-24
• Publisher: Cambridge University Press

Summary

This book provides a detailed exposition of violations of international law authorized and abetted by secret memos, authorizations, and orders of the Bush administration. In particular, it describes why several executive claims were in error, what illegal authorizations were given, what illegal interrogation tactics were approved, and what illegal transfers and secret detentions occurred. It provides the most thorough documentation of cases demonstrating that the president is bound by the laws of war; that decisions to detain persons, decide their status, and mistreat them are subject to judicial review during the war; and that the commander-in-chief power is subject to restraints by Congress.

Author Biography

Jordan J. Paust is the Mike and Teresa Baker Law Center Professor of International Law at the Law Center of the University of Houston

Table of Contents

Preface	p. ix
Acknowledgments and Permissions	p. xiii
Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees	p. 1
Introduction	p. 1
The Afghan War, Laws of War, and Human Rights	p. 1
Executive Plans and Authorizations	p. 5
Illegal Interrogation Tactics	p. 12
The Executive Is Bound by International Law	p. 20
Conclusion	p. 23
Additional Revelations Concerning Treatment, Secret Detentions, and Secret Renditions	p. 25
Introduction	p. 25
Actors, Authorizations, Abetments, and Public Paper Trails	p. 26
The We Do Not "Torture" Ploy and Refusals to Prosecute	p. 30
Secret Detentions, Secret Renditions, and Forced Disappearance	p. 34
Definitions of Forced Disappearance in Violation of International Law	p. 36
Impermissibility of Secret Detentions Under International Law	p. 37
Mangling Military Manuals	p. 42
The 2005 Detainee Treatment Act and Other Binding Laws of the United States	p. 44
Conclusion	p. 45
War and Enemy Status	p. 47
Introduction	p. 47
The United States Cannot Be at "War" with al Qaeda or "Terrorism"	p. 48
The Status of Various Detainees and the Legal Test for Combatant Status	p. 50
Combatant Immunity	p. 31
Legal Tests for Prisoner of War Status	p. 56
Dangerous Consequences Can Arise if the Legal Tests Are Changed	p. 57
The Misconceived Military Commissions Act of 2006	p. 58
Conclusion	p. 63
Judicial Power to Determine the Status and Rights of Persons Detained Without Trial	p. 65
Introduction	p. 65
Propriety of Detention and Necessity of Judicial Review Under International Law	p. 67
Human Rights Standards in Time of Peace, National Emergency, or War	p. 67
Permissible Detention Under Human Rights Law	p. 67
Judicial Review of Detention Under Human Rights Law	p. 68
Detention Under the Laws of War During Times of International Armed Conflict	p. 69
Detention of Prisoners of War	p. 69
Detention of Other Persons	p. 70
Judicial Review of Detention and Status Under the Laws of War	p. 71
Judicial Power and Responsibility to Determine the Status and Rights of Detainees	p. 71
The Applicability of International Law as Law of the United States	p. 71
Judicial Power and Responsibility to Determine Status and Rights	p. 73
Two Cases Before the Supreme Court's Decision in Hamdi	p. 76
Affirming Judicial Responsibility	p. 76
Functionally Abdicating Responsibility to Provide a "Meaningful Judicial Review"	p. 77
The Supreme Court's Decision in Hamdi	p. 80
Habeas Corpus Review	p. 81
Lower Federal Court Decisions Concerning Habeas Corpus	p. 81
The Supreme Court's Decision in Rasul	p. 84
Conclusion	p. 84
Executive Claims to Unchecked Power	p. 86
Legal Constraints on the Commander in Chief Power	p. 86
The Commander-Above-the-Law Theory	p. 89
Misinterpretations of the 2001 Authorization for Use of Military Force	p. 91
The Malignant Military Commissions Act of 2006	p. 92
Conclusion	p. 98
Antiterrorism Military Commissions	p. 100
The 2001 Executive Military Commissions Order	p. 100
Rules of Evidence and Procedure for the 2001 Commissions	p. 112
Several Serious Violations Had Been Continued	p. 113
Denial of the Right to Judicial Review of Detention	p. 114
Denial of the Right to Review by a Competent, Independent, and Impartial Court	p. 116
Denial of the Right to Trial Before a Regularly Constituted, Competent, Independent, and Impartial Tribunal Established by Law	p. 117
Denial of the Rights to Fair Procedure and Fair Rules of Evidence	p. 118
Denial of the Right to Counsel and to Effective Representation	p. 119
Conclusion	p. 119
A Regularly Constituted Court with Fair Procedures: The Supreme Court's Decision in Hamdan	p. 120
Problems Concerning Establishment of the Commissions	p. 120
Procedural Violations	p. 121
The 2006 Military Commissions	p. 127
Conclusion	p. 131
Notes	p. 133
Name Index	p. 301
Subject Index	p. 303
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