Extrajudicial detention, U.S., George W. Bush Administration

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Most of the justification for extrajudicial detention and other unusual legal measures following the 9/11 attack, by the George W. Bush Administration, derive authority from an interpretation on the Constitutional power of the President as Commander-in-Chief, and from the 2001 Authorization for the Use of Military Force (AUMF), as distinct from a declaration of war.[1] It authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This article is focused on taking and holding captives outside the judicial system; it does not address the details of Intelligence interrogation, U.S. generally, or Intelligence interrogation, U.S., George W. Bush Administration. It includes detainees taken on a battlefield, by extraordinary rendition, and in the United States; it encompasses detention by intelligence agencies, and by military organizations when prisoner of war status was not approved.

Congress declared this was a statutory authorization consistent with the War Powers Resolution, although not superseding any of its other requirements. There has been little argument that this authorized combat operations in the Afghanistan War (2001-2021), although the authorization has been less clear both for the Iraq War. It, and legal opinions, also form the Administration's justification for a wide range of actions dealing with individuals and groups considered part of what it terms the war on terror.

A number of the authorities claimed either were repudiated by January 2009 opinions at the end of the Bush Administration, [2] or were no longer claimed by the Obama administration when it succeeded the Bush Administration.

Authority originally claimed

Besides direct military operations, President George W. Bush held that the AUMF permitted him to declare anyone, regardless of citizenship, an enemy combatant. Following a Presidential Proclamation 7463, "Declaration of National Emergency by Reason of Certain Terrorist Attack", this authority was first stated as published as a Military Order, [3] "I Presidential Finding|find consistent with section 836 of title 10, United States Code,[4] that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."

The first formal legal opinion supporting this position , dated August 1, 2002, was issued by Assistant Attorney General Jay Bybee, in the the Office of Legal Counsel of the U.S. Department of Justice went to White House Counsel Alberto Gonzales. [5]

Under the Bush Administration, the United States interpreted its obligations under the Convention against Torture[6] to be applicable only to activities taken in U.S. territory, not in foreign operations. [7] Not all transfers to a state are for purposes of interrogation, but sometimes simply to end the U.S. role of keeping an individual in custody. In some cases, while the U.S. is aware the country may torture, there are cases where the United States detains someone it strongly believes to be a terrorist, no state has filed criminal charges against him, and his state of nationality is much better positioned than the United States to interrogate him, given issues related to language and knowledge of networks, clan structures, and culture."[8] The Convention against Torture contains a refoulement doctrine, in which a state cannot send a prisoner to a country where there is a strong possibility that the individual will be tortured at that destination.

Review and disclosure policy

See also: Guantanamo Bay detention camp/External Links for documents

Under a broader policy on captives apprehended during the war on terror was to keep their identities and locations secret, that George W. Bush Administration would not disclose the names of prisoners at Guantanamo, or at other locations.[9]

In January 2006, judge Jed Rakoff|Jed S. Rakoff, U.S. District Court for the Southern District of New York, rejected this argument, and ruled that the Department of Defense had to publish the captives' identities (see Guantanamo Bay detention camp/External Links. This, however, did not necessarily cover individuals at facilities other than Guantanamo.

The individuals covered by these documents were first identified only by the captives' Internee Security Number (ISN). Later, names were given, but with different spellings, which is a continuing problem situation when transliterating from a non-Roman orthography such as Arabic, Farsi or Pashtun into English-language equivalents. Internal to the United States intelligence community, name indexing is often phonetic and intended to allow different spellings. Adding to the confusion are cultural conventions, such as Osama bin Laden also being called Abd Abdullah, "father of Abdullah", his eldest son. Some commonly used names may include places or tribal identifiers rather than what the West calls a surname, and, as with Abd Abdullah, one may have name forms based on family, such as Fatima bint Ramzi (Fatima, the daughter of Ramzi; no surnames used).

From 2002 through 2006, the Associated Press, the Washington Post, and various non-governmental organizations tried to identify the detainees held at Guantanamo and at other extrajudicial detention facilities , after reports that some had apparently disappeared. The Associated Press issued many Freedom of Information Act requests, requesting Guantanamo captives' documents|documentation of the captives' identities. The Department of Defense denied these requests, arguing that they infringed the captives' rights to privacy, or fell under national security where the state secrets privilege could be invoked.

Carol Rosenberg, then with the McClatchy News Service, was one of the four journalists sent home from the camp early, following camp authorities report three captives had committed suicide on June 10, 2006.[10] Carol J. Williams of the Los Angeles Times and Rosenberg had arrived early for a June 12 Guantanamo military commission hearing. Following the reported deaths all hearings were cancelled, but Camp Commandant Harry Harris initially gave the two reporters permission to stay. Subsequently Commander Jeffrey D. Gordon, a DoD spokesman, announced that all the reporters were to be sent home. According to Gordon other organizations had threatened to sue if their reporters weren't also given access to the base.

Significant cases

In the past, there have been a number of cases involving extrajudicial detention by U.S. authorities, involving different combinations involving the citizenship of individuals detained, where they were apprehended, who detained them, and where they were subsequently detained.

A number of cases took place before the George W. Bush Administration. The cases of ex parte Quirin and Johnson v. Eisentrager are key parts of Bush Administration legal opinions,

Some of the Bush administration combinations include:

Date Citizenship Place of capture Captured by Detainer and place Person(s) and cases Comments
2004 Australian and Kuwaiti Afghanistan U.S. military U.S. military at Guantanamo Rasul et al.; Rasul v. Bush SCOTUS granted habeas
2004 U.S. Aghanistan U.S. military U.S. military (Bagram?) Hamdi et al.; Hamdi v. Rumsfeld SCOTUS ordered trial
2006 Yemeni citizen Aghanistan Afghan troops, turned over to U.S. U.S. troops Hamdan et al.; Hamdan v. Rumsfeld SCOTUS ordered trial


As a result both of court cases and legislative review, two laws were passed refining detention authority, beginning the Detainee Treatment Act in 2004. This set conditions of detention.

After Hamdan v. Rumsfeld said that Congress had to authorize certain military trials, the Military Commissions Act of 2006 was passed.


  1. Joint Resolution: Authorization for Use of Military Force, September 18, 2001, Public Law 107-40 [S. J. RES. 23]
  2. Steven G. Bradley, Principal Deputy Attorney General, Office of Legal Counsel, U.S. Department of Justice (January 15, 2009), Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001
  3. [http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism], 13 November 2001
  4. President may prescribe rules, 10 USC 836, Article 36 of the Uniform Code of Military Justice
  5. Jay Bybee, Office of the Legal Counsel, U.S. Department of Justice, Memorandum for Alberto R, Gonzales, Counsel to the President, Re: Standards of conduct for interrogation under 18 USC [United States Code sections 2340-2340A]
  6. United Nations General Assembly (December 10, 1984), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Office of the High Commissioner on Human Rights, A/RES/39/46
  7. Ashley S. Deeks (June 2008), Avoiding Transfers to Torture, Council on Foreign Relations Press, ISBN 978-0-87609-417-4, p. 7
  8. Deeks, p. 18
  9. Rosenbaum, David E.. The World: Top Secret; When Government Doesn't Tell, The New York Times, The New York Times Company, 3 February 2002. Retrieved on 8 October 2013.
  10. News blackout slated as Pentagon orders four journalists out of Guantanamo Bay, Reporters without borders, 2006-06=15. Retrieved on 2009-08-02. mirror