1 Judge Bybee is credited with having suggested that an act isn't torture unless the pain inflicted is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Memorandum for Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340–2340A (Aug. 1, 2002). Available at http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/memo_20020801_JD_%20Gonz_.pdf. Professor Yoo contemporaneously opined that neither U.S. law nor U.S. obligations under the Convention against Torture impede the use of certain interrogation methods against “captured Al Qaida operatives.” See John Yoo, Letter to Alberto Gonzales (Aug. 1, 2002), available at http://news.findlaw.com/wp/docs/doj/bybee80102ltr.html. Bybee and Yoo were both members of the U.S. Department of Justice, Office of Legal Counsel when these opinions were rendered.Google Scholar

2 The term “lawfare” has been used to criticize the invocation of legal mechanisms to assert rights relating to detention, treatment and trial. See, e.g., Rivkin and Casey, Lawfare (February 23, 2007), http://online.wsj.com/article/SB117220137149816987.html; and John Yoo, Terror Suspects are Waging ‘Lawfare’ on U.S., (Jan, 16, 2008), http://www.philly.com/inquirer/opinion/20080116_Terror_suspects_are_waging_lawfare_on_U_S_.html. These critics seem to posit that while the administration can and must assert the law in defense of its practices, others who do so thereby give aid and comfort to the enemy. They also assume that any legal challenge to practices that the administration considers to be in the context of the “war on terror” is “lawfare,” regardless of whether or not the specific case arises in a situation of armed conflict. A more nuanced analysis of the concept is offered by Maj. Gen. Charles J. Dunlap, Jr., Deputy JAG, USAF. See Charles J. Dunlap, Jr., Lawfare and Warfare, http://www.cspanarchives.org/library/index.php?main_page=product_ video_info&products_id=202362-3.Google Scholar

3 Journalist Ron Suskin describes a meeting with a senior advisor to President Bush in the summer of 2002: “The aide said that guys like me were ‘in what we call the reality-based community,’ which he defined as people who ‘believe that solutions emerge from your judicious study of discernible reality.’ I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ‘That's not the way the world really works anymore,’ he continued. ‘We're an empire now, and when we act, we create our own reality. And while you're studying that reality – judiciously, as you will – we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors … and you, all of you, will be left to just study what we do.” Ron Suskin, Faith, Certainty and the Presidency of George W. Bush, New York Times, October 17, 2004, at http://www.nytimes.com/2004/10/17/magazine/17BUSH.html.Google Scholar

4 In the years since 9/11, U.S. State Department Legal Advisor John Bellinger has participated in numerous public panels and roundtable discussions and has engaged in private discussions with European Union and Council of Europe legal advisors, defending U.S. interpretations of international human rights and humanitarian law and its practices and policies in the fight against international terrorism. See, John B. Bellinger III, Legal Issues in the War on Terrorism, 8 German L. J. 735 (2007), at http://www.germanlawjournal.com/pdf/Vol08No07/PDF_Vol_08_No_07_735-746_Developments_Bellinger.pdf. Dr. Voeneky, Head of the Independent Junior Research Group, Max Plank Institute of Public International Law, Heidelberg, Germany, replied to Mr. Bellinger's remarks, see Silja N.U. Voeneky, Response – The Fight against Terrorism and the Rules of International Law – Comment on Papers and Speeches of John B. Bellinger, Chief Legal Advisor to the United States State Department, 8 German L. J. 747 (2007), at http://www.germanlawjournal.com/pdf/Vol08No07/PDF_Vol_08_No_07_747-760_Developments_Voeneky.pdf. Mr. Bellinger, in turn, responded. See John B. Bellinger III, Legal Issues in the War on Terrorism – Reply to Silja N.U. Voeneky, 8 German L. J. 871 (2007), at http://www.germanlawjournal.com/print.php?id=856.Google Scholar

5 G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948).Google Scholar

6 G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.Google Scholar

7 David Bosco, Moral Principle vs. Military Necessity, The American Scholar (2007), at http://www.theamericanscholar.org/wi08/codes-bosco.html.Google Scholar

8 Id. Google Scholar

9 Id. Google Scholar

10 Preamble, 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land (reprinted in A. Roberts and R. Guelf, Documents on the Laws of War 45 (2nd ed. 1989). See, The Maartens Clause and the Laws of Armed Conflict, 317 IRRC 125–134 (1997), at http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jnhy?opendocument.Google Scholar

11 Pictet, Introduction, in I Commentary on the Geneva Conventions of 12 August 1949, p. 12 (International Committee of the Red Cross, 1952).Google Scholar

12 Art. 26, Vienna Convention on the Law of Treaties: “Pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”Google Scholar

13 U.S. Army and Marine Corps, Counterinsurgency Field Manual (U.S. Army Field Manual No. 3–24; Marine Corps Warfighting Publication No. 3–33.5) (2007).Google Scholar

14 Rule of Law Handbook: A Practitioner's Guide for Judge Advocates (V. Tasikas, T. B. Nachbar, and C. R. Oleszycki, eds., 2007).Google Scholar

15 John B. Bellinger III, Legal Issues in the War on Terrorism – Reply to Silja N.U. Voeneky, supra note 4.Google Scholar

16 See, Article 2, common of Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317; and of Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516.Google Scholar

17 On November 10, 2001, President Bush clearly stated the U.S. view in a speech to the U.N. General Assembly: The United States will work closely with the United Nations and development banks to reconstruct Afghanistan after hostilities there have ceased and the Taliban are no longer in control. http://www.september11news.com/PresidentBushUN.htm. The Security Council likewise understood Afghanistan to be largely under Taliban control prior to the Taliban's overthrow following the terrorist attacks of September 11, 2001. Resolution 1363 of July 30, 2001 strengthens the enforcement of UN sanctions imposed on the Taliban authorities in Afghanistan and establishes a body to report back to the Council on the Taliban's compliance with sanctions. http://en.wikisource.org/wiki/United_Nations_Security_Council_Resolution_1363.Google Scholar

18 See supra note 15.Google Scholar

19 The four criteria for PoW status under GC III Article 4(A)2 are: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly, and; (d) that of conducting their operations in accordance with the laws and customs of war. Experts disagree on whether these criteria are also implicitly part of Article 4(A)(1) and whether they are individual or group requirements. See, e.g., Jennifer Elsea, CRS Report for Congress, Treatment of “Battlefield Detainees” in the War on Terrorism, (updated January 13, 2005), at http://www.fas.org/irp/crs/RL31367.pdf.Google Scholar

20 Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism; http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html.Google Scholar

21 Hamdan v. Rumsfeld, Civil Action No. 04–1519 (JR) United States Court For the District of Columbia, Memorandum Opinion, November 8, 2004, p. 18.Google Scholar

22 See, e.g., Transcript of November 27, 2001 broadcast, Jim Clancy, CNN Correspondent: “Seven Taliban fighters with their distinctive black headdress tried to get into Pakistan but were forced back.” http://transcripts.cnn.com/TRANSCRIPTS/0111/27/nr.00.html.Google Scholar

23 See Elsea, supra note 19.Google Scholar

24 See, e.g., Rasul v. Bush, 542 U.S. 466 (2004).Google Scholar

25 See, Department of Defense (DoD) Press Release, Combatant Status Review Tribunal Order Issues, (June 7, 2004), http://www.defenselink.mil/releases/2004/nr20040707-0992.html.Google Scholar

26 See, Blocher, Joseph, Combatant Status Review Tribunals: Flawed Answers to the Wrong Question, 116 Yale Law Journal 667 (2006), available at SSRN: http://ssrn.com/abstract=972356 (quoting Brief for the Respondents at 42 n.18); Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).Google Scholar

27 Gordon England, Sec'y of the Navy, Defense Department Special Briefing on Combatant Status Review Tribunals (Mar. 29, 2005), http://www.defenselink.mil/transcripts/2005/tr20050329-2382.html (“Justice O'Connor … said [in Hamdi v. Rumsfeld] that one of the remedies she felt was to have a process like Army Regulation 190–8 [implementing Article 5]. So we have implemented that for all of the detainees. And as I said before, we've actually gone beyond that.”).Google Scholar

28 See, Blocker, Joseph, The Guantanamo Three-Step, available at http://yalelawjournal.org/2007/07/04/blocher.html.Google Scholar

29 See Sec. 3(a) of Executive Order: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, July 20, 2007. “I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section.” http://www.whitehouse.gov/news/releases/2007/07/20070720-4.html.Google Scholar

30 The term “enhanced” distinguishes techniques such as water-boarding (mock drowning), exposure to extreme cold (including induced hypothermia), stress positions, extreme sensory deprivation and overload, shaking, striking, prolonged sleep deprivation, and isolation, among others that were authorized in March 2002 for use by the CIA, from more humane techniques detailed in the Army Field Manual and permitted for use against persons in Department of Defense custody. See, Detainee Treatment Act of 2005, 42 U.S.C.S § 2000dd (2006). See also, Leave No Marks: ‘Enhanced’ Interrogation Techniques and the Risk of Criminality: A Report by Human Rights First and Physicians for Human Rights, July 2007, available at http://www.humanrightsfirst.org/us_law/etn/nomarks/exec-summary.asp#_ftn4. See also, Brian Ross & Richard Esposito, CIA's Harsh Interrogation Techniques Described, ABC News Online, Nov. 18, 2005, available at http://abcnews.go.com/WNT/Investigation/story?id=1322866.Google Scholar

31 See, e.g., Priest, Dana, CIA Puts Harsh Tactics On Hold; Memo on Methods Of Interrogation Had Wide Review, Wash. Post, June 27, 2004, at http://www.washingtonpost.com/ac2/wp-dyn/A8534-2004Jun26?language=printer (According to the Washington Post article, the enhanced interrogation techniques were approved by Justice Department and National Security Council lawyers in 2002, briefed to key congressional leaders, and required the authorization of CIA Director George J. Tenet for use).Google Scholar

32 In 1947, the United States prosecuted a Japanese military officer, Yukio Asano, for waterboarding a U.S. civilian during World War II. Yukio Asano received a sentence of 15 years of hard labor. See, Pincus, Walter, Waterboarding Historically Controversial; In 1947, the U.S. Called It a War Crime; in 1968, It Reportedly Caused an Investigation, Washington Post, October 5, 2006, at http://www.washingtonpost.com/wp-dyn/content/article/2006/10/04/AR2006100402005.html. The charges against Asano also included “beating using hands, fists, club; kicking; burning using cigarettes; strapping on a stretcher head downward.” http://socrates.berkeley.edu/~warcrime/Japan/Yokohama/Reviews/Yokohama_Review_Asano.htm. Charges of torture as a war crime were also brought in a post-WW II tribunal in Norway for the use of “verschärfte Vernehmung” (enhanced interrogation) techniques, including induced hypothermia. See, Case No. 12 – Trial of Kriminalsecretar Richard Wilhelm Hermann Bruns and two others by the Eidsivating Lagmannsrett and the Supreme Court of Norway, 20^th March and 3d July, 1946. http://www.ess.uwe.ac.uk/WCC/bruns.htm.Google Scholar

33 See, David Stout, Mukasey Demurs on Waterboarding, NY Times, January 30, 2008, at http://www.nytimes.com/2008/01/30/washington/30cnd-mukasey.html?partner=rssnyt&emc=rss (“‘So let me ask you this,’ Mr. Kennedy said. ‘Would waterboarding be torture if it was done to you?’ ‘I would feel that it was,’ Mr. Mukasey said.”); Lawrence Wright, The Spymaster: Can Mike McConnell fix America's intelligence community? The New Yorker, January 21, 2008, at http://www.newyorker.com/reporting/2008/01/21/080121fa_fact_wright?currentPage=1 (“For him, he said, ‘waterboarding would be excruciating. If I had water draining into my nose, oh God, I just can't imagine how painful! Whether it's torture by anybody else's definition, for me it would be torture.”)Google Scholar

34 The U.S. is a party to The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51, (1984). http://www.unhchr.ch/html/menu3/b/h_cat39.htm. In addition to torture, the Convention prohibits “in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment (CID) or punishment which do not amount to torture.” The U.S. ratification of the Torture Convention was accompanied by a Reservation stating that the U.S. understands the phrase “CID” to mean conduct prohibited by the Fifth, Eighth, and Fourteenth Amendments. See, http://www.unhchr.ch/html/menu2/6/cat/treaties/convention-reserv.htm. The Eighth bans cruel and unusual punishments, the Fifth, as interpreted by the Supreme Court, bans official conduct that “shocks the conscience,” and the Fourteenth applies these to the states. Prof. David Luban explains that “(The Justice Department's Office of Legal Counsel) loopholed this definition of CID in two ways. First, it seized on the fact that the (Supreme) Court has held that the Fifth and Eighth Amendments apply only within U.S. territory. Ergo, nothing outside U.S. territory can possibly count as CID.” The second loophole, according to Prof. Luban, stems from the government's misguided interpretation of the Supreme Court's statement that the “shocks the conscience” standard applies “only the most egregious conduct,” such as “conduct intended to injure in some way unjustifiable by any government interest.” County of Sacramento v. Lewis, 523 U.S. 833, 846, 849 (1998). Obviously, (in the government's view) interrogation of detainees is justifiable by a government interest. If so, it doesn't shock the conscience, doesn't violate the Fifth Amendment, and therefore doesn't count as cruel, inhuman or degrading.” See David Luban, Were You Really Surprised? Balkinization, October 5, 2007. http://balkin.blogspot.com/2007/10/were-you-really-surprised.html.Google Scholar

35 Mr. Bellinger only concedes the application of human rights law to armed conflict occurring on one's own territory. See supra note 15. But the continued applicability of international human rights law in non-international armed conflict more generally has been recognized in the preamble of Additional Protocol II to the Geneva Conventions: “Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person …”. Other authorities in support of the continued application of human rights law in armed conflict include The International Court of Justice (see, ICJ, Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 1996 (July 8) and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 (July 9)); The Human Rights Committee (see, General Comment 29, States of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.1/Add.11 (2001) para. 3) and General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/74/CRP.4/Rev. 6, April 21, 2004); The Committee on Economic, Social and Cultural Rights (see, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel; 31/08/2001. E/C.12/1/Add.69); The International Criminal Tribunal for the former Yugoslavia (see, Prosecutor v. Furundzija, No. IT-95-17/i-T, Judgment, Para. 183 (Dec. 10, 1998), reprinted in 38 ILM 317 (1999); The Inter-American Commission on Human Rights (see, Coard et al v. United States, Case No. 10.951, Report No. 109/99, Annual Report of the IACHR 1999, para. 38). Amongst others, see L. Doswald-Beck and S. Vité, International Humanitarian Law and Human Rights Law, 75 International Review of the Red Cross 94 (No. 293, March-April 1993); R.E. Vinuesa, Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law, 1 Yearbook of International Humanitarian Law 69–110 (1998); R. Provost, International Human Rights and Humanitarian Law (2002); H. Heintze, On the Relationship between Human Rights Law Protection and International Humanitarian Law, 86 International Review of the Red Cross 798 (No. 856, December 2004).Google Scholar

36 See supra note 6.Google Scholar

37 See supra note 15.Google Scholar

38 Mr. Bellinger asserts that the U.S. is at war against ‘Al-Qaeda, its supporters and affiliates.’ See, statement by Mr. Bellinger at a session of the UN Committee against Torture attended by the author on May 8, 2006 at which the Committee reviewed the U.S.'s Second Periodic Report to the Committee, http://www.ohchr.org/english/bodies/cat/cats36.htm.Google Scholar

39 See, e.g., Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (Apr. 4, 2003), p. 4, fn. 1: “The President determined that ‘none of the provisions of Geneva apply to our conflict with Al Qaida in Afghanistan or elsewhere throughout the world, , , ’ “(emphasis added), http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf.Google Scholar

40 Id. Google Scholar

41 See, e.g., Sulmasy, Glenn, The Legal Landscape after Hamdan: The Creation of Homeland Security Courts, 13 New Eng. J. Int'l & Comp. L. 1, 4–5 (2006).Google Scholar

42 18 U.S.C. 2441 (1996).Google Scholar

43 Ex Parte Quirin 317 U.S. 1 (1942). See, e.g., Lee A. Casey, David B. Rivkin, Jr. & Darin R. Bartram, Unlawful Belligerency and its Implications Under International Law, Federalist Society White Paper (2003); at http://www.fed-soc.org/Publications/Terrorism/unlawfulcombatants.htm.Google Scholar

44 See, Protocol I Additional to the Geneva Conventions of 12 August 1949, Article 37. Prohibition of perfidy: 1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidyGoogle Scholar:

1. (a)

   (a) The feigning of an intent to negotiate under a flag of truce or of a surrender;

2. (b)

   (b) The feigning of an incapacitation by wounds or sickness;

3. (c)

   (c) The feigning of civilian, non-combatant status; and

4. (d)

   (d) The feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.

45 The Public Committee Against Torture in Israel v The Government of Israel (2006) HCJ 769/02 ('PCATI'), December 13, 2006, available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf.Google Scholar

46 Id. at para. 28.Google Scholar

47 Id. at para. 26.Google Scholar

48 PCATI (2006) HCJ 769/02 (Expert Opinion of Antonio Cassese, ‘On Whether Israel's Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law'), http://www.stoptorture.org.il. ((Emphasis in original).Google Scholar

49 John Bellinger, Unlawful Enemy Combatants, Opinio Juris, www.opiniojuris.org/posts/1169000173.shtml at page 3.Google Scholar

50 Id. Google Scholar

52 See, e.g., A.P.V. Rogers, Law on the Battlefield 8 (2d. ed. 2004); David Glazier, A Self-inflicted Wound: A Half-Dozen Years of Turmoil over the Guantanamo Military Commissions, 12:1 Lewis & Clark L Rev. 131, 152–153 (2008).Google Scholar

53 Article 43, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516.Google Scholar

54 See supra note 35 (application of human rights law in non-international armed conflict).Google Scholar

55 http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html.Google Scholar

56 Hamdi v. Rumsfeld, 124 S. Ct. at 2639 (plurality opinion).Google Scholar

57 DoD, Guantanamo Detainee Processes 2 (June 9, 2006), at http://www.defenselink.mil/news/Sep2005/d20050908process.pdf.Google Scholar

58 In re: Guantanamo Cases, 355 F. Supp. 2d 443, 475 (D.D.C. 2005).Google Scholar

59 http://www.msnbc.msn.com/id/6631668/.Google Scholar

60 In re: Guantanamo Cases, 355 F. Supp. 2d 443, 475 (D.D.C. 2005).Google Scholar

61 Id. at 468, et seq. and 472 et seq.Google Scholar

62 Id. at 469: “Detainee: Give me his name. Tribunal President: I do not know.”Google Scholar

63 See, e.g., Testimony of David B. Rivkin, Jr., Partner, Baker & Hostetler LLP, Senate Committee on Armed Services, Thursday, April 26, 2007; http://armed-services.senate.gov/statemnt/2007/April/Rivkin%2004-26-07.pdf.Google Scholar

64 The scope of judicial review of CSRT proceedings remains unsettled as of this writing. See, Linda Greenhouse, A 2nd Case on Detainees Complicates Deliberations, NY Times, February 6, 2008, http://www.nytimes.com/2008/02/06/us/nationalspecial3/06scotus.html?_r=1&hp=&adxnnl=1&oref=slogin&adxnnlx=1202310132-9kB+9xxk8SJupwIew02QAg; and Lyle Denniston, U.S. Plans Swift New Appeal On Detainees, http://www.scotusblog.com/wp/uncategorized/us-plans-swift-new-appeal-on-detainees/; discussing Bismullah v. Gates, D.Ct. D.C. (Circuit docket 06-1197).Google Scholar

65 See supra note 35 (application of human rights law in non-international armed conflict).Google Scholar

66 Military Commission Act. of 2006, Pub. L. No. 109–366, 120 Stat. 2600.Google Scholar

67 Fn. 64, supra. Google Scholar

68 CA 3 prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized peoples.”Google Scholar

69 Although the U.S. is not party to Additional Protocol I, important segments of the Additional Protocol are widely regarded as customary international law. See generally Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law (2005); William H. Taft, IV, Symposium: Current Pressure on Int'l Humanitarian Law: The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int'l L. 319, 321–23 (2003) (arguing that Article 75 of Additional Protocol I is customary international law). Mr. Taft was the Legal Advisor of the U.S. State Department from 2001 to 2005. See also Matheson, , The United States’ Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U. J. Int'l L. & Policy 419, 420, 427 (1987) (with particular reference to the customary nature of Art. 75 of Additional Protocol I).Google Scholar

70 See supra note 6, ICCPR Arts 9, 14, 15.Google Scholar

71 See supra note 15; Bellinger, supra note 27 (citing to Sections 948k, 948r(b), 949a(b)(1)(A), 949a(b)(1)(B), and 949l(c)(1) of the Military Commissions Act).Google Scholar

72 Sec. 948k. The accused may represent himself (Sec. 949a(b)(1)(D)), but it is unclear that the exercise of this right is to the exclusion of military counsel imposed upon the accused.Google Scholar

73 Sec. 949c recites the duties of trial counsel. The practical difficulties of representing Guantanamo detainees include obstacles to attorney-client communication that exist by simple virtue of Guantanamo's isolation, compounded by obstacles imposed by detaining authorities.Google Scholar

74 Sec. 949d(d).Google Scholar

75 Sec. 949a(b)(1)(B).Google Scholar

76 Sec. 949d(f).Google Scholar

77 Sec. 949j.Google Scholar

78 Sec. 949a(b)(2)(E).Google Scholar

79 Sec. 948r.Google Scholar

80 Sec. 949h.Google Scholar

81 See, e.g., Glazier, supra note 52.Google Scholar

82 Sec.950g.Google Scholar

83 See Secs. 950b an 950c.Google Scholar

84 Sec. 949b.Google Scholar

85 Melia, Michael, Ex-Gitmo prosecutor alleges politics, Washington Post, April 28, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/04/28/AR2008042801401.html.Google Scholar

86 See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121 (1864), where the U.S. Supreme Court held that the Constitution barred the application of laws of war by a military tribunal “to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.” Another oft-quoted statement about the proper scope of application of military tribunals is from the author of Articles 15 and 21 of the 1916 Articles of War, subsequently interpreted by the U.S. Supreme Court to constitute congressional authorization for military commissions in Ex parte Quirin, 317 U.S. 1, 25–28 (1942) and In re Yamashita, 327 U.S. 1, 1 (1946). The language's author, Army Judge Advocate General Enoch Crowder, testified before a Senate committee: “A military commission is our common law war court ‥ [Art. 15] just saves to these war courts the jurisdiction they now have and makes it a concurrent jurisdiction with courts martial, so that the military commander in the field in time of war will be at liberty to employ either form of court that happens to be convenient. Both classes of courts have the same procedure.” (Emphasis added). S. Rep. No. 64–130, at 40–41 (1916) (testimony of General Crowder), quoted in David Glazier, A Self-inflicted Wound, fn. 52, supra at 139.Google Scholar

87 See supra note 15.Google Scholar

88 See, United States Responses to Selected Recommendations of the Human Rights Committee, October 10, 2007, http://www.state.gov/documents/organization/100845.pdf. The Human Rights Committee rejected this interpretation in response to the appearance of the United States before the Committee: “19. The Committee does not share the view expressed by the Government that the Covenant lacks extraterritorial reach under all circumstances. Such a view is contrary to the consistent interpretation of the Committee on this subject, that, in special circumstances, persons may fall under the subject matter jurisdiction of a state party even when outside that state territory.” Human Rights Committee, Comments on United States of America, U.N. Doc. CCPR/C/79/Add 50 (1995); http://www1.umn.edu/humanrts/hrcommittee/US-ADD1.htm#two.Google Scholar

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91 See supra note 13.Google Scholar

92 See supra note 14.Google Scholar