Robert Povtak, Thomas Luckini & Isaac Gorodetski
I. STATUTES (by Robert Povtak)
A. What Authority Does the U.S. Have to Detain?
AUMF – Authorization for the Use of Military Force
Pub. L. No. 107-40, 115 Stat. 224 (2001).
The AUMF is a joint resolution that was passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on September 11, 2001. The authorization granted the President the authority to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11th attacks, or who harbored said persons or groups. The AUMF was signed by President George W. Bush on September 18, 2001. The language of the resolution is short but direct. § 2(a) explains:
(a) IN GENERAL- That the President is authorized 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.
Full text is available here.
In the Supreme Court case of Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the U.S. government argued that the AUMF granted the United States executive branch authority to try detainees at Guantanamo Bay in specially established military commissions. This argument was rejected by the Supreme Court. The Court said that the administration did not have authority to set up these particular military commissions without congressional authorization, because they did not comply with the Uniform Code of Military Justice and the Geneva Convention.
Justice O’Connor, writing for a plurality of the Court, recognized in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), that detention of individuals who fought against the United States in Afghanistan “for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Thus, the AUMF has been accepted as a confirmation of the President’s power as Commander-in-Chief to detain enemies for as long as the conflict in which they are fighting extends.
War Crimes Act – 1996
18 U.S.C. § 2441
The War Crimes Act defines a war crime to include a “grave breach of the Geneva Conventions”, specifically noting that “grave breach” should have the meaning defined in any convention related to the laws of war to which the U.S. is a party. The law applies if either the victim or the perpetrator is a national of the United States or a member of the U.S. armed forces. Thus this law is directly relevant to the activities in Afghanistan in that war crimes that are committed there by U.S. nationals or soldiers are prosecutable under this statute. The War Crimes Act would also serve to give the United States authority to detain and prosecute enemy combatants, including those in Afghanistan, who it believes have committed war crimes against us.
The definition of “grave breach” varies somewhat in the several Geneva Conventions, but each Convention includes as grave breaches:
any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, [and] wilfully causing great suffering or serious injury to body or health.
The penalty may be life imprisonment or death. The death penalty is only invoked if the conduct resulted in the death of one or more victims.
The War Crimes Act of 1996, as it was originally written, used “grave breach of the Geneva Conventions” as the standard by which to define a war crime, which meant that all grave breaches of the Geneva Conventions were punishable offenses under the WCA. However, the Military Commissions Act of 2006 amended the War Crimes Act so that only actions specifically defined as “grave breaches” of Common Article 3 could be the basis for a prosecution, and it made that definition retroactive to November 26, 1997.
See the Military Commissions Act of 2006 here.
In addition, § 1004(a) of the Detainee Treatment Act provided free counsel for agents involved in the detention and interrogation of individuals “believed to be engaged in or associated with international terrorist activity.” This section also granted a new defense which explains that “if the agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful,” then the agent would not be subject to prosecution for violations of the act. In addition, the same section makes clear that agents may be able to avoid culpability if their actions were reliant, in good faith, upon the advice of counsel, such as government lawyer approval.
See the Detainee Treatment Act here.
See the full text of the War Crimes Act here.
B. What Are the Legal Standards for the Detention Review Process as Applied to Detainees in Afghanistan?
Detainee Treatment Act (2005)
Pub. L. No. 109-148, 119 Stat. 2739 (2005) (codified as amended at 42 U.S.C. § 2000dd (2006) and elsewhere)
The Detainee Treatment Act (“DTA”) was originally enacted in 2005, and prohibits the inhumane treatment of prisoners under United States control. The DTA also provides for uniform rules of interrogation by setting the Army Field Manual, specifically FM 2-22.3 which is discussed in greater detail below, as the standard for regulating interrogation of detainees under U.S. control.
The DTA also attempted to strip federal courts of jurisdiction to hear habeas petitions from detainees, specifically at Guantánamo Bay, Cuba. The DTA was a precursor to the Military Commissions Act of 2006, and in this respect was a response to the Supreme Court’s decision in Rasul v. Bush, 542 U.S. 466 (2004), where the Supreme Court held that federal courts did have subject matter jurisdiction over petitions filed by Guantánamo detainees seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The DTA was also enacted shortly after, and presumably in response to, the well-documented human rights abuses that took place at Abu Ghraib Prison in Iraq. The standards for treatment that are laid out by the DTA are discussed in greater detail below.
Jurisdiction of habeas corpus claims:
The DTA attempted to strip federal courts of jurisdiction to hear detainees’ habeas corpus petitions, and to substitute instead a system of review of appeals from the military panels, known as Combatant Status Review Tribunal (“CSRT”) decisions. The CSRT’s were responsible for determining whether detainees were in fact enemy combatants. The DTA sought to vest exclusive jurisdiction over these reviews in the United States Court of Appeals for the District of Columbia. The DTA’s § 1005(e) clearly states:
(e) Except as provided in . . . [the provisions of the Act establishing the system of review of CSRT decisions], no court, justice, or judge shall have jurisdiction to hear or consider–
(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who–
(A) is currently in military custody; or
(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures . . . [for CSRT review] to have been properly detained as an enemy combatant.
The Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) narrowed the impact of the DTA by ruling that its habeas-jurisdiction-stripping provision were not retroactive. Congress responded, however, with the enactment of the Military Commissions Act of 2006, which amended § 2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, and attempted to make it clearly retroactive. The 2006 MCA, like the DTA, attempted to strip federal courts of jurisdiction to hear habeas corpus claims from detainees. The MCA’s § 7 was the section at issue, and it replaced the DTA’s habeas and judicial review provisions with the following:
(a) IN GENERAL. . . . —
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.
The Supreme Court in Boumediene v. Bush, 553 U.S. 723 (2008) struck down the MCA’s bar on habeas corpus relief as an unconstitutional suspension of the writ of habeas corpus, as applied to detainees at Guantánamo. What bearing this has on detainees in Afghanistan is somewhat unclear. However, the Court of Appeals for the District of Columbia in Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), has ruled that the DTA is a constitutional suspension of habeas corpus rights for Afghan detainees being held in Afghanistan who are enemy combatants. The court distinguished its decision from Boumediene by noting the large practical differences in holding a detainee in an active combat zone compared to a non-active, physically controlled area such as Guantánamo. The Supreme Court has not voiced an opinion on this particular set of circumstances yet.
See the Detainee Treatment Act here.
Military Commissions Act
Pub. L. No. 109-366, 120 Stat. 2600, 2601 (2006), amended in Pub. L. No. 111-84, 123 Stat. 2574 (2009) (codified as amended in 10 U.S.C. § 948a et seq. (2006 Supp. IV)) and elsewhere)
The Military Commissions Act (“MCA”) of 2006, later amended in 2009, authorized trial by military commission for violations of the laws of war by alien “unprivileged enemy belligerents.” The MCA defined “unprivileged enemy belligerent,” and any lawful combatant captured was exempted from being tried by military tribunal. The determination of “unprivileged enemy belligerent” status was to be made by a Combatant Status Review Tribunal (“CSRT”), or by military commission also. Those who are declared “unprivileged enemy belligerents” can be tried for their crimes by military tribunal, and they lose several protections normally afforded to U.S. citizens, or even lawful enemy combatants. The MCA was originally a response to the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
Definitions of Unprivileged Enemy Belligerent from MCA:
§ 948a(7). Definitions
UNPRIVILEGED ENEMY BELLIGERENT.—The term “unprivileged enemy belligerent” means an individual (other than a privileged belligerent) who—
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or
(C) was a part of al Qaeda at the time of the alleged offense under this chapter.
Trials by military commission include provisions which limit the rights of detainee defendants. For example, § 949a(b)(3)(D) dictates that:
Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission [subject to certain conditions including] . . . .
(ii) the military judge, after taking into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne, determines that—
(I) the statement is offered as evidence of a material fact;
(II) the statement is probative on the point for which it is offered;
(III) direct testimony from the witness is not available as a practical matter, taking into consideration the physical location of the witness, the unique circumstances of military and intelligence operations during hostilities, and the adverse impacts on military or intelligence operations that would likely result from the production of the witness; and
(IV) the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
Thus, normally inadmissible evidence can be used in military commissions if the military judge finds it “probative.” This provision is a fairly clear contrast to the rules of evidence not only in the domestic criminal justice system but also, as the statute itself recognizes, in the ordinary military justice system.
In addition, § 949a(b)(3)(B) instructs:
A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.
§ 948r, finally, explicitly permits the use of coerced evidence in certain circumstances, provided the coercion was not so great as to violate the Detainee Treatment Act. But testimony that is the result of graver coercion than that is excluded, under § 948r(a), which reads:
EXCLUSION OF STATEMENTS OBTAIN [sic] BY TORTURE OR CRUEL, INHUMAN, OR DEGRADING TREATMENT.—No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made.
C. What Are the Legal Rules Governing the Treatment of Detainees Held in Detention Facilities in Afghanistan?
Detainee Treatment Act (2005)
Pub. L. No. 109-148, 119 Stat. 2739 (2005) (codified as amended at 42 U.S.C. § 2000dd (2006) and elsewhere)
The Detainee Treatment Act (“DTA”) was enacted in 2005, and prohibits the inhumane treatment of prisoners under United States control. The DTA also provides for uniform standards of interrogation by setting the Army Field Manual as the authority for regulating interrogation of detainees under U.S. control. As noted above, the DTA also attempted to strip federal courts of jurisdiction to hear habeas petitions from detainees, specifically at Guantánamo Bay, Cuba. The DTA was a precursor to the Military Commissions Act of 2006, and was in part a response to the Supreme Court’s decision in Rasul v. Bush, 542 U.S. 466 (2004), which held that federal courts have subject matter jurisdiction over petitions filed by Guantánamo detainees seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Treatment in General
The text of the DTA provides instruction on the treatment of detainees under U.S. control. Specifically, § 1003(a) states:
In General – No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.
The DTA was enacted shortly after the well-documented human rights abuses took place at Abu Ghraib Prison in Iraq. While the DTA does set the standards for detainee treatment, the definition (below) of what constitutes cruel, inhuman, or degrading conduct is still somewhat ambiguous. The terms are defined by constitutional law, but there is still no precise definition offered by any of the cited provisions.
“Cruel, inhuman, or degrading treatment or punishment” is defined by § 1003(d):
In this section, the term `cruel, inhuman, or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
The DTA sets the Army Field Manual as the rule book for interrogation techniques. The act, however, only specifically regulates Department of Defense agencies, not all United States organizations, such as, for example, the CIA. (Executive Order 13491 (2009), discussed below, has set the Army Field Manual as the standard for all government agencies, now including the CIA and others.) The DTA’s § 1002(a) instructs:
No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.
The Army Field Manual, discussed in greater detail below and here (hyperlink to article), specifically mentions the Detainee Treatment Act and affirms the Manual’s compliance with the Act. Previous versions of the AFM have been criticized as not being consistent with international humanitarian law in terms of the treatment of detainees they permitted. While sections of the new AFM are still questioned, such as Appendix M which specifically allows for “separation” and arguably sleep deprivation, the government asserts that this new version comports with international law and the DTA.
See the Detainee Treatment Act here.
“The Torture Statute”
Codified as: 18 U.S.C. §2340 (2006)
The Torture Statute, which was enacted in 1994, defines what torture is. § 2340(1) explains:
“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control . . . .
The statute further defines “severe mental pain or suffering” in § 2340(2) –
“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
A precise definition is not given for “severe physical pain.”
The statute also indicates that there is a twenty-year maximum sentence for those found in violation of the law. Also noteworthy is § 2340(A) which defines jurisdiction:
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
Thus, the statute will only apply if the offender is a U.S. national or if the offender is in the U.S. Additionally, this statute also only applies to act of torture outside the United States, which is not surprising as domestic criminal laws cover activities that might fall under this statute within the U.S.
See the full text of the Torture Statute here.
Executive Order 13491 (2009)
“Ensuring Lawful Interrogations”
Executive Order 13491, 74 Fed. Reg. 4893 (2009).
This order makes the Army Field Manual 2-22.3 the standard even for non-military detention practices (such as those of the CIA):
[A]n individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3 (Manual).
The order also instructed the CIA to close any detention facilities that it might currently be running. In addition, the order assures that the International Committee of the Red Cross shall have access to any detention facilities that are government-run. Executive Order 13491 explicitly revoked Executive Order 13440 , 72 Fed. Reg. 40707 (2007), in which President George W. Bush determined that harsher practices than those mandated in Executive Order 13491 were lawful, under the Geneva Conventions, in the treatment of captives held in extrajudicial detention by the Central Intelligence Agency.
See the full text of Executive Order 13491 here.
See also, the full text of Executive Order 13440 here.
Army Field Manual
FM 2-22.3 (FM 34-52): Human Intelligence Collector Operations (Sep. 6, 2006).
The Army Field Manuals are handbooks with detailed information and how-to’s for procedures that are important to soldiers serving in the field. There are currently approximately 542 different field manuals in use that address a multitude of varying military issues. Army Field Manual 2-22.3 is specific to human intelligence operations, or in other words, detention and interrogation.
FM 2-22.3 is substantial in length and addresses a wide array of human intelligence issues such as data analysis, intelligence collection from U.S. soldiers and detainees, and many other procedures and protocols. It has been expressly stated by the United States government that this newest edition of the Field Manual is driven by a commitment to the humane treatment of detainees. Although the Field Manual affirms that its provisions comply with international humanitarian law, Appendix M of the Manual (discussed further in our Commentary post “Sketching the Limits of the Army Field Manual“), one of a number of appendices covering a range of issues, specifically instructs on the “restricted” techniques of separation. Separation is akin to solitary confinement and the rules that govern its usage in the Field Manual go even further by arguably allowing for sleep deprivation. Despite these concerns, however, this appendix is very specific on how to use the technique without running afoul of the Geneva Conventions.
All of the Army Field Manuals are available to the public and the full text of FM 2-22.3 can be read here.
Belligerent Interrogation, Detention, and Prosecution Act of 2010
S. 3081, 111th Cong. (2010).
The EBIDPA is a controversial proposed bill in the Senate that has not yet become law. It is a bill to provide for the interrogation and detention of enemy belligerents who commit hostile acts against the United States.
The bill requires that any person who is arrested on suspicion of terrorism against the United States or its coalition partners be placed in military custody for the purposes of initial interrogation and determination of status as an “unprivileged enemy belligerent.” Such determination is to be made within 48 hours. “Unprivileged Enemy Belligerent” is defined in § 6 (9) of the bill as one who:
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposely and materially supported hostilities against the United States or its coalition partners; or
(C) was a part of al Qaeda at the time of capture.
The bill is also specific that unprivileged enemy belligerents are not entitled to Miranda warnings, which inform the individual of his or her rights, including the right to remain silent. This is notable because it appears from Sec. 5 of the bill that the term “unprivileged enemy belligerent” can include U.S. citizens. Therefore, this proposed bill aims to take away important rights that U.S. citizens are normally entitled to.
It must, of course, be noted that this bill has not become law, nor is there any positive indication that it will in the future. However, this proposed legislation does represent the aims of several individuals who may continue to push for its enactment.
The full text of the proposed bill may be found here.
In addition to this bill, other proposals are being offered. A proposed bill by Sen. Lindsey Graham (R-SC) can be found here. Also, proposed legislation by Rep. Buck McKeon (R-CA25) can be found here.
II. CASES (by Thomas Luckini)
Presidential Authority to Detain
The Prize Cases, 67 U.S. 635 (U.S. 1863)
Immediately after the outbreak of the Civil War, Abraham Lincoln ordered a blockade of southern ports, and the seizure of ships attempting to run the blockade. In the Prize Cases, the Supreme Court upheld these orders as constitutional, even though there had been no formal congressional declaration or war or explicit, prior congressional authorization for the acts:
By the Constitution, Congress alone has the power to declare a national or foreign war. . . . [But the] Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ‘unilateral.’
Id. at 668.
This case articulates the proposition that when the country is attacked, the President, and not Congress, determines whether a “war” exists, and he determines the level of force to respond with. This argument could be seen as supporting the conclusion that the President has the unilateral authority to order the (military) detention of those responsible for terrorist attacks on America.
However, it could also be argued that this case was not a purely Constitutional one – the presidential power at issue here was arguably rooted in a prior congressional statutory grant of authority, and Lincoln’s actions were also explicitly approved by congress after he ordered them. This case alludes to an innate Presidential power to respond to unilateral attacks, whether foreign or domestic, without the requirement of Congressional approval or support, but it does not do so explicitly as the case was rooted in a fact pattern that included substantial Congressional support. Thus, this case can be used to argue for or against expanded Presidential power to detain in the War on Terror.
Ex parte Milligan, 71 U.S. 2 (U.S. 1866)
During the Civil War, Milligan, a U.S. citizen located in a peaceful state (Indiana), was accused of planning to steal Union weapons and break into Union prisoner-of-war camps. He was arrested by Union military forces, tried by the military, and sentenced to death. The Supreme Court ruled that even though his right to habeas corpus had been properly and legally suspended, his trial and conviction by military authorities was unconstitutional. The Supreme Court based its decision on traditional American principles of limited government and the rule of law.
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.
Id. at 121.
Though the right to habeas corpus had been properly and legally suspended, the military was held to lack the constitutional authority to try the prisoners; that was an authority the Constitution explicitly delegated to the courts. This decision therefore limited any free-wheeling ‘martial law exceptions’ from traditional legal process, even in times of war and public danger.
As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be ‘mere lawless violence.’
Id. at 127.
The decisions in this case have come to stand for the principle that the Constitution does not permit U.S. citizens to be subject to military power so long as the courts are functioning. So long as the courts are open and functional, the Constitution demands that civilian citizens be tried by civilian courts operating under civilian law, and not under military tribunals or military law.
In re Neagle, 135 U.S. 1 (U.S. 1890)
In this case, a local sheriff arrested a federal marshal who had killed a man who was threatening to attack a federal judge. Even though the marshal was acting under presidential orders to guard the judge, the state maintained that the killing constituted murder under state law because there was no federal statute or constitutional provision that authorized federal marshals to act as bodyguards to federal judges. The Supreme Court ruled that both implicit presidential power and congressional authorization had provided for the marshal’s action and ordered his release:
We cannot doubt the power of the President to take measures for the protection of a judge of one of the courts of the United States, who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death, and we think it clear that where this protection is to be afforded through the civil power, the Department of Justice is the proper one to set in motion the necessary means of protection.
Id. at 67.
Much of the persuasive strength of this decision rests on a congressional statute that gave federal marshals, when they were executing the laws of the United States, the same powers as the law enforcement officials of the state. Still, this case can arguably stand for the proposition that the President has certain implied powers, i.e. unenumerated within the Constitution, that go along with his more explicit executive authority — those powers necessary to his enumerated functions. This is also supported by the fact that both the majority and dissenting opinions agreed that the executive had the implied constitutional power to use military force abroad to protect an alien who was in the process of applying for U.S. citizenship. Thus, the Court seems to imply that the scope of implied presidential authority is especially great in the foreign and military context.
Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579 (U.S. 1952)
At the height of the Korean War, workers at steel mills essential to the war effort threatened to strike. On the eve of the threatened strike, President Harry Truman issued an executive order forbidding the strike and directing the Secretary of Commerce to take control of most of the nation’s steel mills. The unions and steel companies obeyed the President’s orders, but the companies sued, arguing that the seizure of the plants was not authorized by an act of Congress or by any constitutional provision.
The Supreme Court held that the President’s orders violated the Constitution and were not authorized by congressional statute. The President, it was said, did not have the innate constitutional authority to seize private property even if the seizure was relevant to his Commander-in-Chief war powers. Additionally, while congress could grant the president this authority through law, it had not done so.
[T]he Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of “war powers,” whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval Forces,” by which it may to some unknown extent impinge upon even command functions.
Id. at 644 (Jackson, J., concurring).
This case clearly articulates limitations on the President’s war powers, and limitations on the concept of governmental “emergency powers,” even during war-time, and shows that the legislature can limit certain aspects of the President’s war-powers. It also clearly states that while a law may be necessary to an important government end, that need does not relieve the government of the necessity of passing the law through the proper constitutionally mandated procedures. Even where it is useful to his war powers, the President may not rule by fiat or through edicts like a king; laws must be passed by Congress:
A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford . . . . The doctrine of the separation of powers was adopted by the [Constitution] not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
Id. at 614 (Frankfurter, J., concurring) (all internal quotations and citations removed).
This decision left the possible existence of Presidential emergency powers unresolved. Despite the language of the majority opinion, statements spanning the multiple concurring opinions imply that the President does have some emergency powers at his disposal. These possible emergency powers hinted at in the concurrences are however neither articulated nor defined in a definite way, nor are they part of an official holding.
Legal Rights of Detainees
Johnson v. Eisentrager, 339 U.S. 763 (U.S. 1950)
At the end of World War II, Germany surrendered unconditionally; under the rules of war this obligated all forces under German control to cease active hostilities immediately. Despite this obligation, a small group of German soldiers stationed in China continued to resist U.S. forces. They were captured by U.S. forces in China and, with the express consent of the Chinese government, there tried and convicted by a U.S. military commission for violating laws of war. They were then transferred, by U.S. forces, to a U.S.-controlled military prison in Germany to serve their sentences. The prisoners filed a habeas corpus petition in a U.S. District Court claiming that their trials and convictions violated Articles I and III of the Constitution, the Fifth Amendment’s Due Process Clause, and the Geneva Convention governing treatment of prisoners of war.
The Supreme Court held that “the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.” Id. at 785. The Court also said it is “the alien’s presence within [the United States’] territorial jurisdiction that gave the Judiciary power to act.” Id. at 771.
These views have been used to support the argument that a bright-line rule exists – hostile aliens, located abroad, are completely beyond the reach of the Judiciary. However, in this decision, the Court weighed many pragmatic concerns in addition to bright-line sentiments as it refused to grant habeas corpus rights to the prisoners. These practical concerns have been argued, and indeed accepted by the modern Court, to reflect the premise that no bright-line rule exists; only factors that must be weighed.
United States v. Verdugo-Urquidez, 494 U.S. 259 (U.S. 1990)
The defendant in this case was a Mexican citizen and resident accused of organizing the shipment of illegal drugs into the United States. Pursuant to a U.S. request, he was arrested by Mexican police, transported to the U.S.-Mexico border, and then handed over to, and legally arrested by, U.S. law enforcement officials. With the consent and cooperation of the Mexican government, Drug Enforcement Administration (DEA) agents then searched defendant’s Mexican residences and seized certain incriminating evidence. At trial, the defendant argued that the evidence should be excluded since the Fourth Amendment, which protects “the people” against unreasonable searches and seizures and generally mandates search warrants, applied to the searches and the DEA agents had failed to obtain a U.S. search warrant.
The Supreme Court ruled that the defendant was not covered by the Fourth Amendment’s search warrant protections since he was not one of “the people” it protected. Since he was a Mexican citizen and resident who spent no time in the United States prior to his forcible incarceration, the defendant could not be said to be a member of the “community” that the Forth Amendment warrant protections covered.
“[T]he people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. . . . The language of these Amendments contrasts with the words “person” and “accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
Id. at 266.
An important caveat to this decision is that, spread over the concurring and the dissenting opinions, five members of the Court argued that Fourth Amendment protections would extend across U.S. borders at least some of the time, e.g. when “reasonable.”
Hamdi v. Rumsfeld, 542 U.S. 507 (U.S. 2004)
Yaser Hamdi was a natural-born U.S. citizen reportedly captured on a battlefield in Afghanistan fighting alongside the Taliban against U.S. forces. The Executive Branch declared him an enemy combatant and transferred him to Guantánamo Bay and then to a military jail in South Carolina for indefinite detention. His detention was not reviewed via traditional American criminal procedures and was instead provided a review of far less exacting rigor. The Executive Branch argued that the decision to detain Hamdi was a legitimate exercise of the President’s war powers, and that he was only entitled to limited habeas review.
The Supreme Court ruled that the Judiciary did have authority to review Hamdi’s detention, that Hamdi had the right to file a habeas corpus claim.
[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. . . . Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ [of habeas corpus] by Congress, a citizen detained as an enemy combatant is entitled to this process.
Id. at 535-37 (plurality opinion) (all internal citations and quotations omitted). The Court also ruled that the review procedures Hamdi had been provided were inadequate to satisfy this right. To determine what level of review any given detention requires in light of the Fifth Amendment right to due process, the plurality re-articulated the three-part test from Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976):
[T]he process due in any given instance is determined by weighing the private interest that will be affected by the official action against the Government’s asserted interest, including the function involved and the burdens the Government would face in providing greater process. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of the risk of an erroneous deprivation of the private interest if the process were reduced and the probable value, if any, of additional or substitute procedural safeguards.
Id. at 529 (all internal citations and quotations omitted).
Thus, though it does not address aliens held abroad, this case makes clear that Constitutional principles apply to U.S. citizens captured abroad, acting as a limit on Presidential exercises of power over them.
Boumediene v. Bush, 553 U.S. 723 (2008)
This case concerned aliens being detained at Guantánamo Bay who had been classified as enemy combatants. Here, the Supreme Court rejected a formalistic approach to judicial sovereignty and articulated a test to determine whether detained aliens like those here had access to habeas corpus review in U.S. courts. It looked to:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
Id. at 766.
The Court determined that based on a weighing of these three factors, the courts will decide whether a detained alien will have access to constitutional habeas review. Under the facts present in this case, the Court determined that alien enemy combatants detained at Guantánamo Bay were entitled to habeas review. This decision was primarily based on the complete control the U.S. exercises over the Guantánamo military base and the relative ease with which the detainees could be given access to U.S. courts. Thus, while this case extended habeas rights to non-citizen detainees at Guantánamo, it did not necessarily speak to the status of such detainees in more remote locations.
Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), vacated as moot sub nom. Al-Marri v. Spagone, 129 S. Ct. 1545 (2009)
The defendant in this case was a lawful resident alien detained militarily as an enemy combatant. For five years the military held al-Marri in the United States, without charge and without any indication when this confinement would end. For the first sixteen months of his military confinement, al-Marri was not permitted any communication with the outside world, including his attorneys, his wife, or his children.
The divided Fourth Circuit, sitting en banc, ruled that the defendant was entitled to Due Process rights, and that his then current confinement violated those rights. This case extends to non-citizen, lawful residents Due Process rights applicable to indefinite and uncharged detention as an enemy combatant. Past case law enshrined this right to U.S. citizens, but this case extended the protection to lawful residents who were not citizens. It however does not decide whether such a right would apply to non-citizen, lawful residents being detained abroad.
Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) By: Avraham Bakst
In this case, the United States Court of Appeals for the District of Columbia Circuit considered the applicability, in Afghanistan, of the Supreme Court’s 2008 decision on detainees’ rights in Boumediene v. Bush, 553 U.S. 723 (2008). Specifically, the issue was whether that ruling, allowing detainees held at Guantánamo Bay, Cuba to file for constitutional habeas corpus relief, applies to detainees held at a U.S. military prison at Bagram Air Force Base in Afghanistan. Al Maqaleh, 605 F.3d at 87. In Boumediene, the Supreme Court adopted a (non-exhaustive) three-factor approach to determine the extraterritorial application of the Constitution those held in military detention at Guantánamo:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made;
(2) the nature of the sites where apprehension and then detention took place;and
(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
Boumediene, 553 U.S. at 766. Applying these factors, the district court denied the government’s motion to dismiss for lack of subject matter jurisdiction, holding that the Boumediene factors should be applied to determine the right of military detainees at Bagram to petition a federal court for habeas corpus relief. Al Maqaleh, 605 F.3d at 87. The district court did, however, certify the jurisdictional issue for interlocutory appeal. Id.
On appeal both the government and the petitioners urged the circuit court to adopt a formulistic application of the Boumediene court’s holding. The government asserted that the Boumediene holding is applicable only to territories that are “considered effectively part of the United States in light of the nature and history of U.S. presence there.” Id. at 94. In contrast, the petitioners argued that the “United States control of Bagram under the lease of the military base is sufficient to trigger application of the Suspension Clause” and the right to habeas corpus relief. Id. at 95.
The circuit court rejected both arguments, as either position would undermine substantial portions of the Supreme Court’s analysis in Boumediene. Id. Rather, the circuit court agreed with the district court that the Boumediene holding “was not based on a formulistic attachment to sovereignty, but on a consideration of practical factors.” Id. The circuit court, however, reversed the lower court on its application of the factors. Id. at 94. Specifically, the location of the detention site, in an active zone of conflict within the sovereignty of a foreign nation, weighted the second and third factors heavily against the petitioners. Id. at 98-99.
Although the holding resulted in the dismissal of the petition, the court recognized that additional factors could be considered. In particular, retention and transfer of a detainee into an active conflict zone to “switch the Constitution on or off at will” would weigh in favor of granting habeas relief. Id. at 99. The court, however, did not reach that issue because “its resolution can await a case in which [that] claim is a reality rather than a speculation.” Id. In reliance on this dictum, the petitioners have filed a motion for leave to amend their original pleadings in the district court to establish such a claim. On February 15, 2011, the district court granted the motion and supplemental briefs are being filed. Maqaleh v. Gates, Civ. A. 06-1669, 2011 WL 666883 (D.D.C. Feb. 15, 2011).
 The detention site has been renamed the “Detention Facility in Parwan.” For the sake of consistency, the name of the facility as it appears in the D.C. Circuit’s opinion is used.
Al Maqaleh Revisited, by: Michael Villacres
The detainees’ supplemental brief in Al Maqaleh was filed on April 4, 2011, and the government filed its motion to dismiss on May 19, 2011. After certain procedures the district court set a motions hearing for July 16, 2012. After questioning both sides during the hearing the court decided to allow the attorney for Al Maqaleh to add supplemental evidence to show the situation had changed since the circuit court’s ruling. Petitioners were given until September 25, 2012 to file the new evidence with the court. The court reviewed many different factors in making its determination. This discussion will focus on two factors: one is Boumediene’s factor of the practical difficulties in holding a trial; the other any new evidence showing avoidance of judicial scrutiny, an item touched on but not resolved in the circuit court in Al Maqaleh due to lack of supporting information.
The supplementary evidence the petitioners provided consisted of a letter from President Karzai’s Chief of Staff, a declaration from a former State Department official, Col. Lawrence B. Wilkerson, and a declaration from a former CIA agent, Mr. Glenn Carle. The Chief of Staff’s letter states that the Afghan government has “no desire for the foreign detainees to remain in the country,” and it also says that the Afghan government is in favor of “fair judicial process” for detainees. The detainees claimed this letter affects the practical difficulties factor, because Afghan governmental support can make the environment less hostile, since the U.S won’t have to worry about hurting U.S.-Afghan relations with habeas proceedings. The declarations by Col. Wilkerson and Mr. Carle deal with the avoidance of judicial scrutiny factor by allegedly providing new evidence regarding the primary motivations for choosing the detention center. They both testify that the main motivation for keeping the detainees at Bagram is to prevent them from asserting certain judicial rights.
On October 19, 2012, the court granted the government’s motion to dismiss. The court reviewed the letter from President Karzai’s Chief of Staff along with the other factors, and found the letter did not change any of the difficulties in having a trial. It also said there was no proof that the letter was a consensus of the Afghan government rather than the opinion of one official. As to the declarations, the court found them to be nothing more than speculation, showing no hard evidence Bagram was being used to avoid judicial scrutiny. Since the court did not find that the new facts changed the situation from what it had been when the court of appeals ruled, the motion to dismiss was granted. The court’s decision means that as of now the Bagram detainees still do not have any habeas rights.
 Al Maqaleh v. Gates, 2012 U.S. Dist. LEXIS 150446, 16-40 (D.D.C. Oct. 19, 2012) (discussing, in addition to the points focused on in the text, the U.S’ intent to remain in Bagram permanently and how that affects the analysis as well as the adequacy of the Detainee Review Board in lieu of actual trials).
 Michael Villacres, Part II: Boumediene and Al Maqaleh: The Application of Habeas to Foreigners Outside the U.S., Detained by U.S., http://www.detainedbyus.org/boumediene-and-al-maqaleh-the-application-of-habeas-to-foreigners-outside-the-u-s/ (December 26, 2012).
 Declaration of Ramzi Kassem [hereafter Kassem Declaration], at 5, Exhibit 1 (Letter from President Karzai’s Chief of Staff Abdul Karim Khurram), Al Maqaleh v. Gates (D.D.C. September 25, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/09/Bakri_-RK-decl_-092412.pdf .
 Kassem Declaration, supra note 2, at 6-10, Exhibit 2 (Declaration of Col. Lawrence B. Wilkerson), Al Maqaleh v. Gates (D.D.C. September 25, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/09/Bakri_-RK-decl_-092412.pdf.
 Kassem Declaration, supra note 2, at 11-15, Exhibit 3 (Declaration of Glenn Carle), Al Maqaleh v. Gates (D.D.C. September 25, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/09/Bakri_-RK-decl_-092412.pdf.
 Kassem Declaration, supra note 2, at 5, Exhibit 1 (Letter from President Karzai’s Chief of Staff Abdul Karim Khurram), Al Maqaleh v. Gates (D.D.C. September 25, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/09/Bakri_-RK-decl_-092412.pdf (Exhibit 1 Letter from President Karzai’s Chief of Staff).
 Michael Villacres, Part III: Al Maqaleh Revisited: Has Anything Changed?, Detained by U.S. (Dec. 29, 2012), http://www.detainedbyus.org/boumediene-and-al-maqaleh-the-application-of-habeas-to-foreigners-outside-the-u-s/.
III. SECONDARY SOURCES (by Isaac Gorodetski)
There are many questions regarding the application of caselaw and statutes to detainees held in Afghanistan. This portion of the U.S. Law tab is intended to serve as a resource to explore the many complex issues that have arisen as a result of the shift of detention operations away from Guantánamo Bay and to Afghanistan. The highlighted law review and law journal articles below cover a wide array of topics in an attempt to make sense of how U.S. law applies to detainees held by the United States abroad in the war in Afghanistan.
The chosen articles are directly relevant to and focus primarily on U.S. detention policies and operations in Afghanistan. There are many other articles that are similar in scope; however, these particular sources include a historical backdrop which tracks the development of legal issues in order to help readers understand how they have evolved and to predict how they may continue to develop. Additionally, the highlighted pieces together cover a wide range of broad legal concerns like torture, detainee review process and habeas rights as they apply specifically to detainees in Afghanistan. A review of these articles should help outline the underlying legal issues in a broad and usually chronological manner which shines a light on the issues subject to heavy debate. This page is meant not only to clarify the U.S. Law materials, but, also to equip the reader with the necessary background information to springboard his/her research efforts.
Naturally these articles are driven by the arguments and points of view of their authors and therefore, do not reflect the opinions of the creators and contributors of this website. Each article was chosen solely for its extensive exploration and discussion of relevant legal issues which are at the core of the website’s focus as reflected in the mission statement.
James Thornburg, Balancing Act in Black Robes: Extraterritorial Habeas Corpus Jurisdiction Beyond Boumediene, 48 Duq. L. Rev. 85-104 (2010).
Issue: Extraterritorial Habeas Corpus
This law review article offers a comprehensive review of each of the Boumediene factors. Additionally, James Thornburg examines and critiques the application of the factors in both the Boumediene decision itself and in Al Maqaleh v. Gates at the district court level. These issues are also discussed in Commentary posts on “Retreat to Bagram” and “The Great Writ Goes to War.” (ADD CASELAW LINKS WHEN READY)
The main premise of the article is that the Boumediene factors, according to James Thornburg, “created a poor framework for determining the extraterritorial reach of the writ of habeas corpus.” This discussion bears directly on the implications of the Boumediene three factor plus test in regard to the extraterritorial application of habeas rights to detainees held in Afghanistan.
Justin D. D’Aloia, From Baghdad to Bagram: The Length & Strength of the Suspension Clause after Boumediene, 33 Fordham Int’l L.J. 957-1047 (2010)
Issue: Extraterritorial Habeas Corpus
This article examines the question of extraterritorial habeas jurisdiction and the reach of the Suspension Clause in light of Boumediene v. Bush (again, see Commentary posts “Retreat to Bagram” and “The Great Writ Goes to War“). After a comprehensive background on habeas corpus and a historical review of Boumediene, the article closely analyzes the framework created by the Boumediene factors. Various hypothetical situations are then created in order to explore how each factor would be applied in deciding whether the Constitution and in particular the Suspension Clause apply extraterritorially.
This article proposes that while Boumediene may have sought to provide a framework to help courts address this issue many gray areas still remain.
Baher Azmy, Executive Detention, Boumediene, and the New Common Law of Habeas,
95 Iowa L. Rev. 445-539 (2009-2010)
Issue: Extraterritorial Habeas Corpus
Professor Baher’s article provides an extensive overview of habeas corpus rights as well as an extensive analysis of the Boumediene decision. Professor Baher dedicates a significant portion of this article to discussing the issue of extending the right to petition for habeas corpus to detainees held at Bagram Air Base. He explores the challenges and ambiguities with respect to each Boumediene factor as it applies to detainees at Bagram.
Professor Baher’s main thesis is that it is the proper role of courts to enforce the rights under the Suspension Clause most specifically in the context of detention operations.
Fred K. Ford, Keeping Boumediene off the Battlefield: Examining Potential Implications of the Boumediene v. Bush Decision to the Conduct of United States Military Operations, 30 Pace L. Rev. 396-416 (2010)
Issue: Extraterritorial Habeas Corpus
This article asserts that the open ended nature of the Boumediene decision could have costly implications on our military operations in Afghanistan. The dissents in Boumediene by Chief Justice Roberts and Justice Scalia are further explored by offering hypothetical scenarios which would confirm the respective justices’ fears in applying habeas extraterritorially to detainees in active conflict zones.
Stephen I. Vladeck, The Unreviewable Executive: Kiyemba, Maqaleh, and the Obama Administration, 26 Const. Comment, 603-24 (2010)
Issue: Separation of Powers
Stephen Vladeck examines the issues of detention and habeas corpus through an analysis of the current policies of the Obama administration. More specifically, Professor Vladeck focuses on discerning the proper constitutional authority of the Executive and Judicial branches respectively. What is the proper role of the Federal courts and the President in the U.S. war in Afghanistan? Who has the authority to adjudicate the rights of detainees held by U.S. forces in Afghanistan?
This journal article answers these questions with a separation of powers argument. The author reaches a conclusion that asserts a constitutional intent to empower the judiciary to check the authority of the executive especially in habeas cases, which involve people detained and deprived of their liberty.
Jeff A. Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, 2010 Army Law. 9-49 (2010)
Issue: Detainee Review Process
Lieutenant Colonel Bovarnick details the adjustments the U.S. government has made in its detention operations.
This article offers a comprehensive analysis and examination of the evolution of the detainee review process. Lieutenant Colonel Bovarnick begins with an extensive background of the detainee review process and then outlines the comprehensive detainee review process, administered by the military, now applicable to those detained as enemy combatants in Afghanistan. The current Detainee Review Board process is broken down in stages and each stage is explained in detail.
Lieutenant Colonel Bovarnick explains that detention operations were a strategic liability to U.S. military efforts in Afghanistan and the war against terror generally. Therefore, the U.S. military recognized that it was absolutely necessary to establish and implement procedural and substantive rules in regard to the detainee review process to legitimize detention operations as a whole. For further discussion of this idea, see the commentary post “Retreat to Bagram“; for more skeptical views, see the posts on “The Role of the Personal Representative” and “Detainee Review Boards and U.S. Criminal Law.”
Joseph Falvey, Holding the High Ground: The Operational Calculus of Torture and Coercive Interrogation, 32 Campbell L. Rev. 561-93 (2009-2010)
Issue: Interrogation and Torture
Falvey’s article criticizes the current objections to torture and seeks to refine a principled objection to torture in its modern form. He posits that the current objections to torture fail to address the core problems with the practice and allow the government to simply adjust or evolve its practice of torture. According to Falvey, current objections overemphasize brutality instead of coercion which allows the government to develop less overtly harmful methods of torture which are still fundamentally torture.
With reports of black sites in Bagram Air Base and the evolution of modern torture, this article is a great resource to examine the legal underpinnings that would prevent such practices in our current detention policies.
Alan Clarke, Rendition to Torture: A Critical Legal History, 62 Rutgers L. Rev. 1-96 (2009-2010)
Issue: Torture and Extraordinary Rendition
This article provides a clear history of the practice of extraordinary rendition, by which people may be transferred from country to country for purposes of torture. In light of evidence that the use of extraordinary rendition has expanded in the war on terror, Alan Clarke outlines the legal underpinnings beneath such a practice. Clarke concludes that the government’s claimed legal underpinnings are insufficient, and explains that once a government determines guilt it will defend obvious violations of human rights with overly broad policy justifications.
With Bagram Air Base holding close to two thousand detainees (link to detainee articles, info page), the practice of extraordinary rendition is important to consider in the context of overall detention policies operations in Afghanistan.
 See Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field (“First Geneva Convention”), art. 50, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (“Second Geneva Convention“), art. 51, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War (“Third Geneva Convention”), art. 130, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War (“Fourth Geneva Convention”), art. 147, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.