BUSH AND THE JUDICIARY RE: WAR ON TERROR
In November of 2001, shortly after the war in Afghanistan began, President Bush issued Military Order
of November 13 2001 “Detention, Treatment, and Trial of Non-Citizens in the War Against Terrorism”
(BTW, that’s another change that Obama has instituted) Federal Register 66: 57833
Notice that this is a MILITARY order, not an executive order
Bush argued that those captured in Afghanistan and suspected of being members of/collaborators with
Al-Qaeda (the identification of which was soley the pregorative of the Dept. of Defense) could be
detained for the duration of the war, and tried by “military tribunal”, which did not require unanimous
verdicts, and which did not adhere to the usual rules of evidence for criminal trials, on whose verdicts
the final authority would be the president himself”
The precedent cited by the President was the Ex Parte Quirin decision by the Supreme Court in 1942,
which unanimously upheld the right of FDR to use military commissions to try and sentence suspected
German saboteurs in the United States for offenses against the law of war (They said that Ex Parte
Milligan did not apply because Milligan had not been an enemy belligerent, just a US citizen suspected
of conspiring to liberate Confederate prisoners)
Bush also announced that since Al-Qaeda was not one of the countries that agreed to the Geneva
Conventions on the treatment of prisoners of war, and since Al-Qaeda was not really a national military
at all, that Al-Qaeda prisoners are not Prisoners of War that were protected by the Geneva Conventions
He argued that such prisoners would be treated humanely, in a way consistent with the Geneva
Conventions, but the US did not have to adhere to the letter of the law
Part of the debate over whether waterboarding or sleep deprivation equals torture has to do with the
definition----traditionally, torture has been defined in terms of the severity of the harm or pain inflicted,
but the Bush Administration focuses on the “permanence” of the damage done (organ failure, etc.)
In the 2004 Supreme Court decision of Hamdi v. Rumsfeld, the Court ruled that an enemy combatant US
citizen DID have the right to challenge the factual basis of his or her detention in a US Court ---but the
Court did support the President’s claim that the AUMF had given him the right to determine who was an
“enemy combatant” as opposed to a prisoner of war or an ordinary criminal defendant (even though
detention was not mentioned in the debate over AUMF, prisoner-taking is an inherent and commonly
understood part of the use of force)
In the 2004 case of Rasul v. Bush, even non-citizens had the right to contest their detainment---note that
a lot of Constitutional rights accure to PERSONS, not citizens
In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court said that the president did not have the
power to create a military tribunal process different from what was in the UCMJ without authorization
In response, the Bush administration drafted and Congress passed the Military Commissions Act of
2006, which explicitly legalized the processes set up by Bush, including denying enemy combatants
habeas corpus privileges, allowing hearsay evidence, and allowing coerced testimony obtained prior to
the Detainee Treatment Act of 2005 excplicitly outlawed torture
However, last year, in the case of Boumedeine v. Bush (2008), the Supreme Court ruled that the part of
the MCA that denied habeas corpus to the enemy combatants was unconstitutional
In 2005, it was made known that the Bush Administration secretly authorized monitoring of phone
communications between Americans and suspected terrorists overseas, without obtaining warrants
from the FISA Special Court
In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which had set up a
procedure for presidents to follow to do wiretapping to gather foreign intelligence---there was a
top-secret FISA court that approved the warrants for such wiretapping (and it almost never said
“no”), and there was even a provision that allowed the wiretapping in emergency situations to go
without a warrant for 72 hours
IN 2008, Congress passed the FISA Amendments Act, which created a new procedure for
authorizing wiretaps and protected the telecommunications companies from lawsuits alleging
invasion of privacy
Prohibits the individual states from investigating, sanctioning of, or requiring disclosure by complicit telecoms or other persons.
Permits the government not to keep records of searches, and destroy existing records (it requires them to keep the records for a period
of 10 years).
Protects telecommunications companies from lawsuits for "'past or future cooperation' with federal law enforcement authorities and
will assist the intelligence community in determining the plans of terrorists."
Removes requirements for detailed descriptions of the nature of information or property targeted by the surveillance.
Increased the time allowed for warrantless surveillance to continue from 48 hours to 7 days.
Requires FISA court permission to wiretap Americans who are overseas.
Prohibits targeting a foreigner to eavesdrop on an American's calls or e-mails without court approval.
Allows the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
Allows eavesdropping in emergencies without court approval, provided the government files required papers within a week.
Prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future
In 2005, through the efforts of John McCain, the Detainee Treatment Act of 2005 was passedby
veto-proof majorities: “No individual in the cussetody of or under the physical control of the US
Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or
degrading treatment or punishment”
Bush signed it, but issued a signing statement saying “the executive branch shall construe (this
section regarding detainees) in a manner consistent with the constiutitonal authorirty of the
President to supervise the unitary executive branch and as Commander in Chief and consistent
withi the constitutional limitations on the judicial power.