Nội dung

P1: KNP 9780521884266pre CUFX178/Paust 978 0 521 88426 6 This page intentionally left blank July 27, 2007 11:45 P1: KNP 9780521884266pre CUFX178/Paust 978 0 521 88426 6 July 27, 2007 BEYOND THE LAW This book provides detailed exposition of violations of international law authorized and abetted by secret memos, authorizations, and orders of the Bush administration – in particular, 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 also 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. Tests for combatant and prisoner of war status are contrasted with Executive claims and the 2006 Military Commissions Act. Special military commissions contemplated by President Bush are analyzed along with the Supreme Court’s decision in Hamdan concerning their illegal structure and procedures, as well as problems created by the 2006 Military Commissions Act. Jordan J. Paust is the Mike and Teresa Baker Law Center Professor of International Law at the Law Center of the University of Houston. He received an A.B. and a J.D. from the University of California–Los Angeles and an LL.M. from the University of Virginia, and he is a J.S.D. Candidate at Yale University. Professor Paust has also been a Visiting Edward Ball Eminent Scholar University Chair in International Law at Florida State University, a Fulbright Professor at the University of Salzburg, Austria, and a member of the faculty of the U.S. Army Judge Advocate General’s School, International Law Division. He has served on several committees on international law, human rights, laws of war, terrorism, and the use of force in the American Society of International Law. He is currently co-chair of the American Society’s International Criminal Law Interest Group. He was the Chair of the Section on International Law of the Association of American Law Schools and was on the Executive Council and the President’s Committee of the American Society of International Law. He has published works in several countries, many of which address treaties, customary international law, jurisdiction, human rights, international crimes, and the incorporation of international law into U.S. domestic law. i 11:45 P1: KNP 9780521884266pre CUFX178/Paust 978 0 521 88426 6 ii July 27, 2007 11:45 P1: KNP 9780521884266pre CUFX178/Paust 978 0 521 88426 6 BEYOND THE LAW The Bush Administration’s Unlawful Responses in the “War” on Terror JORDAN J. PAUST University of Houston Law Center iii July 27, 2007 11:45 CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521884266 © Jordan J. Paust 2007 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2007 eBook (EBL) ISBN-13 978-0-511-35477-9 ISBN-10 0-511-35477-0 eBook (EBL) ISBN-13 ISBN-10 hardback 978-0-521-88426-6 hardback 0-521-88426-8 ISBN-13 ISBN-10 paperback 978-0-521-71120-3 paperback 0-521-71120-7 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. P1: KNP 9780521884266pre CUFX178/Paust 978 0 521 88426 6 July 27, 2007 CONTENTS Preface page ix Acknowledgments and Permissions xiii ONE . Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees . . . . . . . 1 A. B. C. D. E. F. Introduction The Afghan War, Laws of War, and Human Rights Executive Plans and Authorizations Illegal Interrogation Tactics The Executive Is Bound by International Law Conclusion 1 1 5 12 20 23 TWO. Additional Revelations Concerning Treatment, Secret Detentions, and Secret Renditions . . . . . . . . . . . . . . . . . . . . 25 A. B. C. D. Introduction Actors, Authorizations, Abetments, and Public Paper Trails The We Do Not “Torture” Ploy and Refusals to Prosecute Secret Detentions, Secret Renditions, and Forced Disappearance 1. Definitions of Forced Disappearance in Violation of International Law 2. Impermissibility of Secret Detentions Under International Law E. Mangling Military Manuals F. The 2005 Detainee Treatment Act and Other Binding Laws of the United States G. Conclusion v 25 26 30 34 36 37 42 44 45 11:45 P1: KNP 9780521884266pre CUFX178/Paust vi THREE . 978 0 521 88426 6 July 27, 2007 CONTENTS War and Enemy Status . . . . . . . . . . . . . . . . . . . . . . 47 A. Introduction B. The United States Cannot Be at “War” with al Qaeda or “Terrorism” C. The Status of Various Detainees and the Legal Test for Combatant Status D. Combatant Immunity E. Legal Tests for Prisoner of War Status F. Dangerous Consequences Can Arise if the Legal Tests Are Changed G. The Misconceived Military Commissions Act of 2006 H. Conclusion 47 48 50 53 56 57 58 63 FOUR . Judicial Power to Determine the Status and Rights of Persons Detained Without Trial . . . . . . . . . . . . . . . . . . . . . 65 A. Introduction B. Propriety of Detention and Necessity of Judicial Review Under International Law 1. Human Rights Standards in Time of Peace, National Emergency, or War a. Permissible Detention Under Human Rights Law b. Judicial Review of Detention Under Human Rights Law 2. Detention Under the Laws of War During Times of International Armed Conflict a. Detention of Prisoners of War b. Detention of Other Persons c. Judicial Review of Detention and Status Under the Laws of War C. Judicial Power and Responsibility to Determine the Status and Rights of Detainees 1. The Applicability of International Law as Law of the United States 2. Judicial Power and Responsibility to Determine Status and Rights 3. Two Cases Before the Supreme Court’s Decision in Hamdi a. Affirming Judicial Responsibility b. Functionally Abdicating Responsibility to Provide a “Meaningful Judicial Review” D. The Supreme Court’s Decision in Hamdi 65 67 67 67 68 69 69 70 71 71 71 73 76 76 77 80 11:45 P1: KNP 9780521884266pre CUFX178/Paust 978 0 521 88426 6 CONTENTS E. Habeas Corpus Review 1. Lower Federal Court Decisions Concerning Habeas Corpus 2. The Supreme Court’s Decision in Rasul F. Conclusion FIVE . vii 81 81 84 84 Executive Claims to Unchecked Power . . . . . . . . . . . . . . 86 A. Legal Constraints on the Commander in Chief Power B. The Commander-Above-the-Law Theory C. Misinterpretations of the 2001 Authorization for Use of Military Force D. The Malignant Military Commissions Act of 2006 E. Conclusion SIX . July 27, 2007 86 89 91 92 98 Antiterrorism Military Commissions . . . . . . . . . . . . . . . 100 A. The 2001 Executive Military Commissions Order B. Rules of Evidence and Procedure for the 2001 Commissions 1. Several Serious Violations Had Been Continued 2. Denial of the Right to Judicial Review of Detention 3. Denial of the Right to Review by a Competent, Independent, and Impartial Court 4. Denial of the Right to Trial Before a Regularly Constituted, Competent, Independent, and Impartial Tribunal Established by Law 5. Denial of the Rights to Fair Procedure and Fair Rules of Evidence 6. Denial of the Right to Counsel and to Effective Representation 7. Conclusion C. A Regularly Constituted Court with Fair Procedures: The Supreme Court’s Decision in Hamdan 1. Problems Concerning Establishment of the Commissions 2. Procedural Violations D. The 2006 Military Commissions E. Conclusion 100 112 113 114 Notes 133 Name Index 301 Subject Index 303 116 117 118 119 119 120 120 121 127 131 11:45 P1: KNP 9780521884266pre CUFX178/Paust 978 0 521 88426 6 viii July 27, 2007 11:45