Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror
Jordan J. Paust
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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.
See, e. g. , The Paquete Habana, 175 U. S. at 698 (“law of war”), 700, 708, 711, 714; Paust, supra note 10, at 172, 175–76, 183–84 n. 24, 189–90 n. 67; Jordan J. Paust, P1: KNP 9780521884266not CUFX178/Paust 978 0 521 88426 6 July 27, 2007 11:37 170 NOTES TO PAGES 21–22 Paquete and the President: Rediscovering the Brief for the United States, 34 Va. J. Int’l L. 981 (1994). See also The Paquete Habana, 189 U. S. 453, 464 (1903). 189. See Trans World Airlines v. Franklin Mint Corp. , 466 U. S. 243, 261 (1984) (O’Connor, J.
Cf Silverstein, supra. Other military lawyers furthered the common plan. See, e. g. , supra note 60; text supra notes 101–06; text infra note 141. 120. See, e. g. , Secretary of Defense Donald Rumsfeld, Memorandum for the Com- mander, US Southern Command (Apr. 16, 2003), available at: http://www. npr. org/documents/2004/dod prisoners/20040622doc9. pdf; Robert Burns, Lawyers Opposed Questioning at Guantanamo, The Tribune, SanLuisObispo. com, May 21, 2004; Barry, et al. , supra note 58, at 32; Smith, supra note 89; Final Report 2004, supra note 60, at 8, 35; Human Rights Watch, supra note 112, at 3.
See, e. g. , id. ; The Prize Cases, 67 U. S. (2 Black) 635, 666–67 (1862). Moreover, the President is bound by and must faithfully execute international law, especially the laws of war. See, e. g. , Section E, infra. 55. Gonzales, supra note 44, at 2. Former White House Counsel John Dean has stated that “[t]he Gonzales memo shows the president was up to his eyeballs in the decision about how to extract information from those captured in Afghanistan” and there is “indisputable evidence that President Bush issued orders” to deny protections under the laws of war.
B. A. Criminal Justice Section expressed his criticism and that by other A. B. A. representatives of “the decision to relax the rules of evidence so as to admit anything ‘that a reasonable person would find probative. ’”139 Cross-examination of wit- nesses against the accused was only authorized with respect to witnesses “who appear before the Commission. ” 140 Witnesses also could provide tes- timony “by telephone, audiovisual means, or other means,” 141 thus placing in jeopardy the rights of confrontation and cross-examination of witnesses.
30, 2005, at 35; Neil A. Lewis, Broad Use of Harsh Tactics Is Described at Cuba Base, N. Y. Times, Oct. 17, 2004, at 1; Dana Priest & Joe Stephens, Harsh Actions Okayed by U. S. Officials, Toronto Star, May 9, 2004, at 7 (harsh tactics included exposure “to heat, cold and ‘sensory assault,’ including P1: KNP 9780521884266not CUFX178/Paust 978 0 521 88426 6 July 27, 2007 11:37 NOTES TO PAGES 15–16 159 loud music and bright lights”); Tim Reid, Files Implicate Bush in Iraqi Jail Abuses, The Times (London), Dec.