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

Preface ix Acknowledgments and Permissions xiii Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees 1(24) Introduction 1(1) The Afghan War, Laws of War, and Human Rights 1(4) Executive Plans and Authorizations 5(7) Illegal Interrogation Tactics 12(8) The Executive Is Bound by International Law 20(3) Conclusion 23(2) Additional Revelations Concerning Treatment, Secret Detentions, and Secret Renditions 25(22) Introduction 25(1) Actors, Authorizations, Abetments, and Public Paper Trails 26(4) The We Do Not ``Torture'' Ploy and Refusals to Prosecute 30(4) Secret Detentions, Secret Renditions, and Forced Disappearance 34(8) Definitions of Forced Disappearance in Violation of International Law 36(1) Impermissibility of Secret Detentions Under International Law 37(5) Mangling Military Manuals 42(2) The 2005 Detainee Treatment Act and Other Binding Laws of the United States 44(1) Conclusion 45(2) War and Enemy Status 47(18) Introduction 47(1) The United States Cannot Be at ``War'' with al Qaeda or ``Terrorism'' 48(2) The Status of Various Detainees and the Legal Test for Combatant Status 50(3) Combatant Immunity 53(3) Legal Tests for Prisoner of War Status 56(1) Dangerous Consequences Can Arise if the Legal Tests Are Changed 57(1) The Misconceived Military Commissions Act of 2006 58(5) Conclusion 63(2) Judicial Power to Determine the Status and Rights of Persons Detained Without Trial 65(21) Introduction 65(2) Propriety of Detention and Necessity of Judicial Review Under International Law 67(4) Human Rights Standards in Time of Peace, National Emergency, or War 67(1) Permissible Detention Under Human Rights Law 67(1) Judicial Review of Detention Under Human Rights Law 68(1) Detention Under the Laws of War During Times of International Armed Conflict 69(1) Detention of Prisoners of War 69(1) Detention of Other Persons 70(1) Judicial Review of Detention and Status Under the Laws of War 71(1) Judicial Power and Responsibility to Determine the Status and Rights of Detainees 71(9) The Applicability of International Law as Law of the United States 71(2) Judicial Power and Responsibility to Determine Status and Rights 73(3) Two Cases Before the Supreme Court's Decision in Hamdi 76(1) Affirming Judicial Responsibility 76(1) Functionally Abdicating Responsibility to Provide a ``Meaningful Judicial Review'' 77(3) The Supreme Court's Decision in Hamdi 80(1) Habeas Corpus Review 81(3) Lower Federal Court Decisions Concerning Habeas Corpus 81(3) The Supreme Court's Decision in Rasul 84(1) Conclusion 84(2) Executive Claims to Unchecked Power 86(14) Legal Constraints on the Commander in Chief Power 86(3) The Commander-Above-the-Law Theory 89(2) Misinterpretations of the 2001 Authorization for Use of Military Force 91(1) The Malignant Military Commissions Act of 2006 92(6) Conclusion 98(2) Antiterrorism Military Commissions 100(33) The 2001 Executive Military Commissions Order 100(12) Rules of Evidence and Procedure for the 2001 Commissions 112(8) Several Serious Violations Had Been Continued 113(1) Denial of the Right to Judicial Review of Detention 114(2) Denial of the Right to Review by a Competent, Independent, and Impartial Court 116(1) Denial of the Right to Trial Before a Regularly Constituted, Competent, Independent, and Impartial Tribunal Established by Law 117(1) Denial of the Rights to Fair Procedure and Fair Rules of Evidence 118(1) Denial of the Right to Counsel and to Effective Representation 119(1) Conclusion 119(1) A Regularly Constituted Court with Fair Procedures: The Supreme Court's Decision in Hamdan 120(7) Problems Concerning Establishment of the Commissions 120(1) Procedural Violations 121(6) The 2006 Military Commissions 127(4) Conclusion 131(2) Notes 133(168) Name Index 301(2) Subject Index 303