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Beyond the Law : The Bush Administration's Unlawful Responses in the War on Terror - Jordan J. Paust

Beyond the Law

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


Published: 30th November 2007
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Provides a detailed exposition of violations of international law authorised and abetted by secret memos, authorisations and orders of the Bush administration.

It describes why several executive claims were in error, what illegal authorisations were given, what illegal interrogation tactics were approved, and what illegal transfers and secret detentions occurred.

It offers 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.

Special military commissions contemplated by President Bush are analysed along with the Supreme Court's decision in Hamdan concerning their illegal structure and procedures, as well as problems created by the 2006 Military Commission Act.

About the Author

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 UCLA, an LL.M. from the University of Virginia, and 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 all over the world, many of which address treaties, customary international law, jurisdiction, human rights, international crimes and the incorporation of international law into US domestic law.

Jordan Paust ... has produced a thorough and definitive account of US war crimes against its detainees.' W. Podmore '... [Professor Paust] writes with the detachment and care one expects of a good Q.C.' Contemporary Review 'What Beyond the Law compellingly delivers is an anatomy of how members of the Bush Administration ran afoul of international human rights law and how some senior lawyers shattered norms of legal ethics and professional responsibility. Paust provides an argument as to how international criminal law might retrospectively frame those events. Regardless of how we debate where the law might go in terms of adapting to perilous new security threats, Paust's work encourages anti-terrorism initiatives to be implemented in the name of law and now against law. His work also ensures that those engaged in the struggle against terrorist atrocity sacrifice neither their dignity nor humanity.' European Journal of International Law

Prefacep. ix
Acknowledgments and Permissionsp. xiii
Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detaineesp. 1
Introductionp. 1
The Afghan War, Laws of War, and Human Rightsp. 1
Executive Plans and Authorizationsp. 5
Illegal Interrogation Tacticsp. 12
The Executive Is Bound by International Lawp. 20
Conclusionp. 23
Additional Revelations Concerning Treatment, Secret Detentions, and Secret Renditionsp. 25
Introductionp. 25
Actors, Authorizations, Abetments, and Public Paper Trailsp. 26
The We Do Not "Torture" Ploy and Refusals to Prosecutep. 30
Secret Detentions, Secret Renditions, and Forced Disappearancep. 34
Definitions of Forced Disappearance in Violation of International Lawp. 36
Impermissibility of Secret Detentions Under International Lawp. 37
Mangling Military Manualsp. 42
The 2005 Detainee Treatment Act and Other Binding Laws of the United Statesp. 44
Conclusionp. 45
War and Enemy Statusp. 47
Introductionp. 47
The United States Cannot Be at "War" with al Qaeda or "Terrorism"p. 48
The Status of Various Detainees and the Legal Test for Combatant Statusp. 50
Combatant Immunityp. 31
Legal Tests for Prisoner of War Statusp. 56
Dangerous Consequences Can Arise if the Legal Tests Are Changedp. 57
The Misconceived Military Commissions Act of 2006p. 58
Conclusionp. 63
Judicial Power to Determine the Status and Rights of Persons Detained Without Trialp. 65
Introductionp. 65
Propriety of Detention and Necessity of Judicial Review Under International Lawp. 67
Human Rights Standards in Time of Peace, National Emergency, or Warp. 67
Permissible Detention Under Human Rights Lawp. 67
Judicial Review of Detention Under Human Rights Lawp. 68
Detention Under the Laws of War During Times of International Armed Conflictp. 69
Detention of Prisoners of Warp. 69
Detention of Other Personsp. 70
Judicial Review of Detention and Status Under the Laws of Warp. 71
Judicial Power and Responsibility to Determine the Status and Rights of Detaineesp. 71
The Applicability of International Law as Law of the United Statesp. 71
Judicial Power and Responsibility to Determine Status and Rightsp. 73
Two Cases Before the Supreme Court's Decision in Hamdip. 76
Affirming Judicial Responsibilityp. 76
Functionally Abdicating Responsibility to Provide a "Meaningful Judicial Review"p. 77
The Supreme Court's Decision in Hamdip. 80
Habeas Corpus Reviewp. 81
Lower Federal Court Decisions Concerning Habeas Corpusp. 81
The Supreme Court's Decision in Rasulp. 84
Conclusionp. 84
Executive Claims to Unchecked Powerp. 86
Legal Constraints on the Commander in Chief Powerp. 86
The Commander-Above-the-Law Theoryp. 89
Misinterpretations of the 2001 Authorization for Use of Military Forcep. 91
The Malignant Military Commissions Act of 2006p. 92
Conclusionp. 98
Antiterrorism Military Commissionsp. 100
The 2001 Executive Military Commissions Orderp. 100
Rules of Evidence and Procedure for the 2001 Commissionsp. 112
Several Serious Violations Had Been Continuedp. 113
Denial of the Right to Judicial Review of Detentionp. 114
Denial of the Right to Review by a Competent, Independent, and Impartial Courtp. 116
Denial of the Right to Trial Before a Regularly Constituted, Competent, Independent, and Impartial Tribunal Established by Lawp. 117
Denial of the Rights to Fair Procedure and Fair Rules of Evidencep. 118
Denial of the Right to Counsel and to Effective Representationp. 119
Conclusionp. 119
A Regularly Constituted Court with Fair Procedures: The Supreme Court's Decision in Hamdanp. 120
Problems Concerning Establishment of the Commissionsp. 120
Procedural Violationsp. 121
The 2006 Military Commissionsp. 127
Conclusionp. 131
Notesp. 133
Name Indexp. 301
Subject Indexp. 303
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9780521711203
ISBN-10: 0521711207
Audience: Professional
Format: Paperback
Language: English
Number Of Pages: 326
Published: 30th November 2007
Publisher: Cambridge University Press
Country of Publication: GB
Dimensions (cm): 22.8 x 15.2  x 1.7
Weight (kg): 0.514