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

ISBN-10: 0521711207
ISBN-13: 9780521711203
Edition: 2007
Authors: Jordan J. Paust
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Description: 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  More...

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Book details

List price: $34.99
Copyright year: 2007
Publisher: Cambridge University Press
Publication date: 9/24/2007
Binding: Paperback
Pages: 326
Size: 6.00" wide x 8.75" long x 0.75" tall
Weight: 1.144
Language: English

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.

Preface
Acknowledgments and Permissions
Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees
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
Additional Revelations Concerning Treatment, Secret Detentions, and Secret Renditions
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
Definitions of Forced Disappearance in Violation of International Law
Impermissibility of Secret Detentions Under International Law
Mangling Military Manuals
The 2005 Detainee Treatment Act and Other Binding Laws of the United States
Conclusion
War and Enemy Status
Introduction
The United States Cannot Be at "War" with al Qaeda or "Terrorism"
The Status of Various Detainees and the Legal Test for Combatant Status
Combatant Immunity
Legal Tests for Prisoner of War Status
Dangerous Consequences Can Arise if the Legal Tests Are Changed
The Misconceived Military Commissions Act of 2006
Conclusion
Judicial Power to Determine the Status and Rights of Persons Detained Without Trial
Introduction
Propriety of Detention and Necessity of Judicial Review Under International Law
Human Rights Standards in Time of Peace, National Emergency, or War
Permissible Detention Under Human Rights Law
Judicial Review of Detention Under Human Rights Law
Detention Under the Laws of War During Times of International Armed Conflict
Detention of Prisoners of War
Detention of Other Persons
Judicial Review of Detention and Status Under the Laws of War
Judicial Power and Responsibility to Determine the Status and Rights of Detainees
The Applicability of International Law as Law of the United States
Judicial Power and Responsibility to Determine Status and Rights
Two Cases Before the Supreme Court's Decision in Hamdi
Affirming Judicial Responsibility
Functionally Abdicating Responsibility to Provide a "Meaningful Judicial Review"
The Supreme Court's Decision in Hamdi
Habeas Corpus Review
Lower Federal Court Decisions Concerning Habeas Corpus
The Supreme Court's Decision in Rasul
Conclusion
Executive Claims to Unchecked Power
Legal Constraints on the Commander in Chief Power
The Commander-Above-the-Law Theory
Misinterpretations of the 2001 Authorization for Use of Military Force
The Malignant Military Commissions Act of 2006
Conclusion
Antiterrorism Military Commissions
The 2001 Executive Military Commissions Order
Rules of Evidence and Procedure for the 2001 Commissions
Several Serious Violations Had Been Continued
Denial of the Right to Judicial Review of Detention
Denial of the Right to Review by a Competent, Independent, and Impartial Court
Denial of the Right to Trial Before a Regularly Constituted, Competent, Independent, and Impartial Tribunal Established by Law
Denial of the Rights to Fair Procedure and Fair Rules of Evidence
Denial of the Right to Counsel and to Effective Representation
Conclusion
A Regularly Constituted Court with Fair Procedures: The Supreme Court's Decision in Hamdan
Problems Concerning Establishment of the Commissions
Procedural Violations
The 2006 Military Commissions
Conclusion
Notes
Name Index
Subject Index

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