Responding lawfully to Al Qaeda

Catholic University Law Review

Volumn 56, Issue 3, 2007, Pages 759-803

  Paust, Jordan J ^a,b  

^a Mike and Teresa Baker Law Center

^b UNIVERSITY OF HOUSTON   (United States)

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EID: 34547579307     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (508)

1. Jordan J. Paust, War and Enemy Status After 9/11: Attacks on the Laws of War, 28 YALE J. INT'L L. 325, 326 (2003).
2. Id. at 326-27.
3. Id. at 327.
4. Id. at 326.
5. See, e.g., id.
6. See id.
7. See, e.g., id. at 326 & n.6.
8. See generally The Prize Cases, 67 U.S. (2 Black) 635 (1863); Paust, supra note 1, at 326 n.6.
9. See, e.g.,
10. The Prize Cases, 67 U.S. at 666-67, 669; see also infra note 34.
11. Paust, supra note 1, at 326-27.
12. See id. at 327.
13. See, e.g., id. at 327;
14. see also Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1013-15 (2d Cir. 1974) (holding that the United States could not have been at war with the Popular Front for the Liberation of Palestine (PFLP), which had engaged in terrorist acts as a non-state, non-belligerent, non-insurgent actor).
15. Paust, supra note 1, at 327.
16. See S.C. Res. 1617, pmbl., U.N. Doc. S/RES/1617 (July 29, 2005);
17. G.A. Res. 59/191, ¶¶ 1-3, U.N. Doc. A/RES/59/191 (Dec. 20, 2004);
18. S.C. Res. 1566, ¶ 1, U.N. Doc. S/RES/156 (Oct. 8, 2004);
19. G.A. Res. 49/60, Annex art. 1, U.N. Doc. A/RES/49/60 (Dec. 9, 1994);
20. G.A. Res. 46/51, ¶ 1, U.N. Doc. A/RES/46/51 (Dec. 9,1991);
21. G.A. Res. 40/61, ¶ 1, U.N. Doc. A/RES/40/61 (Dec. 9, 1985);
22. see also 18 U.S.C. § 2332 (2000). The United States could request extradition of the three Canadians in the introductory hypothetical for trial under 18 U.S.C. § 2332(b). See id. An objective definition of terrorism would include the following elements: (1) an intent to produce terror in a primary target; (2) the outcome of terror (or intense fear or anxiety); (3) use of violence or a weapon (broadly understood) or a threat to use such; and (4) a political, ideologic, or religious motive.
23. See, e.g., Jordan J. Paust, An Introduction to and Commentary on Terrorism and the Law, 19 CONN. L. REV. 697, 701, 703-05 (1987). General patterns of practice and special opinio juris seem to exempt lawful acts of war engaged in by combatants against non-captured enemy combatants during an actual international armed conflict.
24. See id. at 708-09. As Yoram Dinstein rightly recognized in his paper delivered during the West Point conference on November 7, 2005, direct victims are merely instrumental targets.
25. Paust, supra note 1, at 327. Concerning human rights duties of private individuals,
26. see, for example, Jordan J. Paust, The Reality of Private Rights, Duties, and Participation in the International Legal Process, 25 MICH. J. INT'L L. 1229,1241-45 (2004);
27. Jordan J. Paust, Human Rights Responsibilities of Private Corporations, 35 VAND. J. TRANSNAT'L L. 801 (2002).
28. Paust, supra note 1, at 327.
29. See Mark A. Drumbl, Guantánamo, Rasul, and the Twilight of Law, 53 DRAKE L. REV. 897, 908 (2005) (recognizing the political irony of "absurdly glorifying terrorism as armed conflict and terrorists as 'warriors'").
30. Jordan J. Paust, Use of Armed Force against Terrorists in Afghanistan, Iraq, and Beyond, 35 CORNELL INT'L L.J. 533, 534 (2002).
31. Louis Henkin, War and Terrorism: Law or Metaphor, 45 SANTA CLARA L. REV. 817, 821 (2005).
32. See Jordan J. Paust, Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions, 79 NOTRE DAME L. REV. 1335, 1344 (2004) (noting remarks of Abraham D. Sofaer);
33. Paust, supra note 18, at 535 n.3;
34. see also Henkin, supra note 19, at 821;
35. cf. YORAM DLNSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 245 (4th ed. 2005) (arguing that such creates an "armed conflict" with the state but not a "war"). However, if the non-state entity that initiated the attack has belligerent or insurgent status, an armed conflict between the responding state and the belligerent or insurgent can arise.
36. U.N. Charter art. 51.
37. Paust, supra note 18, at 534 & n.3;
38. see DINSTEIN, supra note 20, at 184-85, 204-08;
39. Yoram Dinstein, Humanitarian Law on the Conflict in Afghanistan, 96 AM. SOC'Y INT'L L. PROC. 23, 24 (2002);
40. see also Legal Consequences of Construction of Wall in Occupied Palestinian Territory, Advisory Opinion (July 9, 2004), 43 I.L.M. 1009, 1063 (2004) (Higgins, J., separate opinion);
41. id. at 1072 (Kooijmans, J., separate opinion);
42. id. at 1079 (declaration of Buergenthal, J.). But see id. at 1049-50 (opinion of the court);
43. infra note 29.
44. See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 432(2), 433(1)(a) (1987);
45. JORDAN J. PAUST, JON M. VAN DYKE & LINDA A. MALONE, INTERNATIONAL LAW AND LITIGATION IN THE U.S. 574-80 (2d ed. 2005).
46. See, e.g., Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 64-65, 103-04, 118-19 (June 27) (concerning the general test for state attribution justifying military force in self-defense against the state, for example, from which a non-state actor attack emanates);
47. see also Armed Activities on Territory of the Congo (Dem. Rep. Congo v. Uganda), 45 I.L.M. 271, 306 (2005);
48. Paust, supra note 18, at 540-41. Attribution is different than mere state responsibility. See infra note 29.
49. See PAUST, VAN DYKE & MALONE, supra note 23, at 535 & n.6;
50. Paust, supra note 20, at 1345-46;
51. see also DINSTEIN, supra note 20, at 184-85.
52. DINSTEIN, supra note 20, at 184-85.
53. See, e.g., Paust, supra note 18, at 535 & nn.4-5.
54. Id. at 533-36.
55. Id. at 540-43. Also, permissibility of self-defense measures against the state on whose territory the non-state actor attacks originated does not exist when the state merely has "state responsibility" for tolerating, harboring, or financing the attacks, which can instead lead to political, diplomatic, economic, or juridic sanctions against the state.
56. See id. at 540-41. State responsibility is therefore not the same as "attribution." With respect to the Iran hostage crisis, Iran did far more than endorse the student hostage-taking and other illegalities; they joined and controlled the continuing violations of international law.
57. See Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, 34-36 (May 24).
58. Paust, supra note 18, at 538;
59. see also U.S. DEP'T OF ARMY, FIELD MANUAL 27-10: THE LAW OF LAND WARFARE para. 31 (1956) [hereinafter FIELD MANUAL 27-10].
60. See, e.g., Paust, supra note 18, at 538.
61. Id. at 538-39. President Clinton claimed such a right of self-defense on behalf of the United States "in certain extreme cases."
62. See PAUST, VAN DYKE & MALONE, supra note 23, at 605 (quoting a 1992 White House statement). Bin Laden could be brought to the United States and prosecuted in a federal district court for (1) any war crimes committed at his direction during actual wars in Afghanistan or Iraq,
63. see generally PAUST, VAN DYKE & MALONE, supra note 23, at 162-64;
64. Jordan J. Paust, After My Lai: The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEX. L. REV. 6 (1971); (2) relevant violations of the Antiterrorism Act, 18 U.S.C. § 2332(a)-(c) (2000) (regarding killings of U.S. nationals outside the United States); and (3) violations of other relevant federal statutes,
65. see generally United States v. bin Laden, 92 F. Supp. 2d 189 (S.D.N.Y. 2000). Bin Laden could not be prosecuted lawfully in a military commission at Guantanamo.
66. See, e.g.. Paust, supra note 20, at 1361-63.
67. See generally Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 MICH. J. INT'L L. 1 (2001) [hereinafter Paust, Courting Illegality]. Moreover, his capture and detention would fit within the congressional authorization in the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001), since he planned, authorized, and ordered the 9/11 attacks.
68. See Hamdi v. Rumsfeld, 542 U.S. 507, 517-21 (2004) (plurality opinion). However, the three Canadians in the introductory hypothetical would not be covered by the congressional authorization.
69. See, e.g., Jordan J. Paust, International Law Before the Supreme Court: A Mixed Record of Recognition, 45 SANTA CLARA L. REV. 829, 838 n.51 (2005) [hereinafter Paust, Before the Supreme Court].
70. See Paust, supra note 20, at 1350-52.
71. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795-96 (2006) ("[T]here is at least one provision of the Geneva Conventions that applies here . . . . Common Article 3 . . . .");
72. id. at 2797 (noting that the phrase '"regularly constituted court'... in Common Article 3 . . . must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law");
73. id. at 2799 (Kennedy, J., concurring) ("[T]he requirement of the Geneva Conventions [is] a requirement that controls here . . . . The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation's armed conflict with al Qaeda in Afghanistan . . . . That provision is Common Article 3 . . . . The provision is part of a treaty the United States has ratified and thus accepted as binding law. By Act of Congress, moreover, violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses . . . .");
74. Paust, supra note 20, at 1347;
75. Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 COLUM. J. TRANSNAT'L L. 811, 813-16 (2005).
76. Moreover, all of the customary laws of war, including those reflected in the 1949 Geneva Conventions, would apply in Afghanistan and Iraq during an armed conflict between a state and mere belligerents or during a civil war having the status of a belligerency. See, e.g., FIELD MANUAL 27-10, supra note 30, para. 11(a) ("The customary law of war becomes applicable to civil war upon recognition of the rebels as belligerents"). Thus, customary rights, duties, and competencies reflected in the Geneva Conventions would apply despite technical, non-policy-serving readings of the third paragraph in Common Article 2 of the treaties concerning a "[p]ower" that is not a signatory to the treaties (which can include a belligerent, but technically only if the belligerent "accepts and applies" the treaties).
77. See Paust, supra, at 819 n.28 (concerning the reach of customary law reflected in the 1907 Hague Convention No. IV despite a limitation in the treaty concerning the reach of the treaty as such). Since the United States is still engaged in significant fighting in each country (apparently with remnants of the Taliban or Saddam Hussein's military) and some enemy fighters come from outside each country, one can recognize that the international nature of the conflicts continues.
78. Cf. JORDAN J. PAUST, M. CHERIF BASSIOUNI ET AL., INTERNATIONAL CRIMINAL LAW 819-20 (2d ed. 2000).
79. See supra note 34. Concerning the applicability of customary and treaty-based human rights law, see, for example, Paust, supra note 34, at 820-23.
80. See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 1, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Civilian Convention].
81. See, e.g., 4 COMMENTARY ON THE GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 15, 37 (Jean S. Pictet ed., 1958) [hereinafter 4 COMMENTARY] (providing that each party's "obligation is absolute [and] compulsory");
82. id. at 39 (stating that inhuman treatment and other proscriptions are "prohibited absolutely . . . [with] no exception or excuse");
83. id. at 204-05 (noting the "absolute . . . character" of the duty to provide humane treatment);
84. id. at 219-20 (providing that the prohibition of coercion applies in "all cases, whether the pressure is direct or indirect," and coercion is "forbidden for any purpose or motive whatever");
85. id. at 228 (stating that no "military necessity" exception exists to the prohibition of reprisals);
86. PAUST, BASSIOUNI ET AL., supra note 34, at 847;
87. UK MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED CONFLICT 23 (2004) [hereinafter 2004 U.K. MANUAL];
88. Paust, supra note 34, at 815. John Yoo still does not understand that "necessity" is not a defense under this binding treaty law of the United States or other treaties banning torture and cruel, inhuman, or degrading treatment.
89. See JOHN YOO, WAR BY OTHER MEANS 172 (2006) (contending that United States interrogators should "do what is reasonably necessary");
90. id. at 175 (claiming that "'good reasons'" are available defenses);
91. id. at 200 (stating in error that under current law, "necessity or self-defense" are allowable defenses).
92. See, e.g., Paust, supra note 34, at 814-16.
93. Paust, supra note 1, at 329.
94. Id. at 329-30.
95. Id.
96. See, e.g., ROBERT K. GOLDMAN & BRIAN D. TITTEMORE, UNPRIVILEGED COMBATANTS AND THE HOSTILITIES IN AFGHANISTAN: THEIR STATUS AND RIGHTS UNDER INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW 5-6 (2002), available at http://www.asil.org/taskforce/goldman.pdf;
97. Paust, supra note 1, at 327-28.
98. Paust, supra note 1, at 331-32. The phrase "unlawful combatant" is unhelpful because it confuses two separate issues concerning (1) the status of a person (e.g., as a combatant or noncombatant who is not privileged to engage in combat), and (2) a lack of immunity for personal acts committed in violation of the laws of war. If one is a combatant, one is not an unlawful combatant (although some of their acts may be unlawful), and a person having any status can violate the laws of war and lack immunity from prosecution. See id.
99. See GOLDMAN & TITTEMORE, supra note 42, at 4,6;
100. Knut Ipsen, Combatants and Non-Combatants, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICT 65, 68 (Dieter Fleck ed., 1995);
101. infra note 49;
102. cf. Nathaniel Berman, Privileging Combat? Contemporary Conflict and the Legal Construction of War, 43 COLUM. J. TRANSNAT'L L. 1,14 (2004) ("Engagement in combat by those not covered by the combatants' privilege . . . is not illegal per se under international law. . . . [T]he contending parties are free to punish individuals engaged in such activities under their own law."). Language in Ex parte Quirin can create confusion.
103. See Ex parte Quirin, 317 U.S. 1 (1942). In that case, German "enemy belligerents," "who though combatants," were prosecuted for the war crime of engaging in combat activity out of uniform (prior to creation of the 1949 Geneva Conventions). See id. at 35-37, 44;
104. W. Hays Parks, Special Forces' Wear of Non-Standard Uniforms, 4 CHI. J. INT'L L. 493, 547 n.31 (2003);
105. Paust, supra note 1, at 331-32. They were prisoners of war and enemy combatants. Yet, the Court stated that it was appropriate "to charge all the petitioners with the offense of unlawful belligerency." Quirin, 317 U.S. at 23 (emphasis added). The Court also stated that participation in combat without uniform subjects the individual "to the punishment prescribed by the law of war for unlawful belligerents."
106. Id. at 37;
107. see also 4 COMMENTARY, supra note 37, at 53 (noting that "irregular combatants [are t]hose who take part in the struggle while not belonging to the armed forces [and] are acting deliberately outside the laws of warfare"; however, the acts are not labeled as war crimes). Like bin Laden, they could be prosecuted in a federal district court for any war crime they committed in Afghanistan or Iraq or for violations of relevant extraterritorial federal statutes, assuming that the United States would have jurisdiction under customary international law principles (e.g., protective and universal jurisdiction).
108. See supra note 32. Since it is not a war crime merely to engage in unprivileged acts of violence as an unprivileged fighter, they could not be prosecuted for such acts as "war crimes." They would not be combatants and would not have combatant immunity. Since military commissions are authorized by Congress merely to prosecute violations of the laws of war, see 10 U.S.C. §§ 818, 821 (2000), they lack jurisdiction to prosecute what are merely unprivileged acts of violence and not war crimes. Moreover, the military commissions at Guantanamo lack lawful competence for other reasons.
109. See supra note 32. An unavoidable constitutional command requires that Congress create courts and tribunals inferior to and, thus, under the ultimate control of, the Supreme Court. See U.S. CONST, art. I, § 8, cl. 9;
110. Paust, supra note 20, at 1362-63.
111. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004) (plurality opinion);
112. Padilla v. Hanft, 423 F.3d 386, 388-93 (4th Qr. 2005), cert. denied, 126 S. Ct. 1649 (2006);
113. In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 445-50 (D.D.C. 2005), vacated sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert, denied, 127 S. Ct. 1478 (2007). The Bush administration has also used an overly broad definition of enemy combatant that has no support elsewhere. As noted in In re Guantanamo Detainee Cases: On July 7, 2004, nine days after the issuance of the Rasul decision, Deputy Secretary of Defense Paul Wolfowitz issued an Order creating a military tribunal called the Combatant Status Review Tribunal [CSRT] to review the status of each detainee at Guantanamo Bay as an 'enemy combatant.' . . . That definition is as follows: [T]he term 'enemy combatant' shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
114. In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 450 (emphasis added);
115. see also Memorandum from Paul Wolfowitz, Deputy Sec'y, U.S. Dep't of Def., to Sec'y of the Navy (July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/d20040707 review.pdf. Even under this overly broad definition, if the three Canadians in the introductory hypothetical had been successful, they would not have committed a belligerent act and would not have directly supported hostilities, or be combatants, as those terms are widely known. A broad interpretation of "supporting" might be thought to reach them, but mere support of those who are in fact combatants engaged in hostilities does not make one a combatant.
116. U.S. ARMY JUDGE ADVOCATE GENERAL'S LEGAL CTR. & SCH., OPERATIONAL LAW HANDBOOK 12 (2002). The word "[a]nyone" was changed in the 2006 version to "military personnel." U.S. ARMY JUDGE ADVOCATE GENERAL'S LEGAL CTR. & SCH., OPERATIONAL LAW HANDBOOK 16 (2006) [hereinafter OPERATIONAL LAW HANDBOOK].
117. 73 INTERNATIONAL LAW STUDIES: ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS 296 (A.R. Thomas & James C. Duncan eds., 1999).
118. Convention Respecting the Laws and Customs of War on Land, Annex art. 1, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631;
119. see also GOLDMAN & TITTEMORE, supra note 42, at 8-9.
120. See Instructions for the Government of Armies of the United States in the Field art. 57, Apr. 24,1863, available at http://www.icrc.org/ ihl.nsf/FULL/110;
121. see also id. art. 82 ("[Those] who commit hostilities . . . without commission, without being part and portion of the organized hostile army . . . are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.").
122. Geneva Convention Relative to the Treatment of Prisoners of War art. 4(A)(1), Aug. 12,1949,6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW].
123. Paust, supra note 1, at 329;
124. see also United States v. Noriega, 808 F. Supp. 791, 795 (S.D. Fla. 1992);
125. GOLDMAN & TITTEMORE, supra note 42, at 9, 27;
126. George H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96 AM. J. INT'L L. 891, 894-95 (2002);
127. Paust, supra note 34, at 813;
128. Steven R. Ratner, Jus ad Bellum and Jus in Bello After September 11, 96 AM. J. INT'L L. 905, 911 (2002);
129. supra notes 46-49 and infra note 56.
130. Paust, supra note 1, at 329-30.
131. Id. at 330;
132. see also GOLDMAN & TITTEMORE, supra note 42, at 2;
133. Jordan J. Paust, Antiterrorism Military Commissions: The Ad Hoc DOD Rules of Procedure, 25 MICH. J. INT'L L. 677, 683-85 & n.35 (2002).
134. Paust, supra note 1;
135. see also Charter for the International Military Tribunal for the Far East art. 5(b), Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20;
136. Allied Control Council Law No. 10 art. 2(1)(b), Dec. 20, 1945, reprinted in I LEGAL DLV., OFFICE OF MILITARY GOV'T FOR GERMANY (U.S.), ENACTMENTS AND APPROVED PAPERS OF THE CONTROL COUNCIL AND COORDINATING COMMITTEE 306-07 (1945);
137. Charter of the International Military Tribunal at Nuremberg art. 6(b), Aug. 8, 1945, 59 Stat. 1546, 82 U.N.T.S. 279 (describing war crimes as "namely, violations of the laws or customs of war");
138. Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on the Defence Motion on Jurisdiction, ¶¶ 61-62 (Aug. 10, 1995);
139. Report of the International Law Commission to the General Assembly, [1950] 1 Y.B. Int'l L. Comm'n 374, 377, U.N. Doc. A/CN.4/SER.A/1950 (defining war crimes as "[violations of the laws of and customs of war");
140. U.K. WAR OFFICE, THE LAW OF WAR ON LAND BEING PART III OF THE MANUAL OF MILITARY LAW para. 624 & n.1 (1958) [hereinafter 1958 U.K. MANUAL] (noting that "[t]he term 'war crime' is the technical expression for violations of the laws of warfare, whether committed by members of the armed forces or by civilians" and "may be committed by nationals both of belligerent and of neutral States");
141. FIELD MANUAL 27-10, supra note 30, para. 499 ("The term 'war crime' is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.");
142. Paust, supra note 34, at 812;
143. infra note 140.
144. Paust, supra note 1, at 330.
145. Id. at 332-33. "Insurgents during an armed conflict not of an international character to which merely common Article 3 applies (and perhaps Protocol II to the Geneva Conventions and certain customary laws of war) presently have no right to POW status or combat immunity." Id. at 333 n.31;
146. see also Berman, supra note 44, at 20;
147. supra note 42. Article 4(A)(1) and (3) of the GPW states:
148. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
149. Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces . . . . (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. GPW, supra note 50, art. 4(A)(1), (3). '"Expressum facit cessare tacitum . . . . Only 4(A)(2) contains the four limitations. Specialia generalibus derogant. " Paust, supra note 1, at 333 n.32;
150. see also GOLDMAN & TITTEMORE, supra note 42, at 9-10, 27.
151. Paust, supra note 1, at 333.
152. See 3 COMMENTARY ON THE GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 57-61 (Jean S. Pictet ed., 1960) [hereinafter 3 COMMENTARY].
153. GPW, supra note 50, art. 4(A)(2).
154. Id. art. 5;
155. see also In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 479-80 (D.D.C. 2005) ("If there is any doubt as to whether individuals satisfy the Article 4 prerequisites, Article 5 entitles them to be treated as prisoners of war 'until such time as their status has been determined by a competent tribunal.'" (quoting GPW, supra note 50, art. 5)), vacated sub nom. Boumediene v. Bush, Nos. 05-5062 to 05-5064, 05-5095 to 05-5116, 2007 WL 506581 (D.C. Cir. Feb. 20, 2007).
156. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 520-21 (2004) (plurality opinion).
157. See, e.g., GOLDMAN & TITTEMORE, supra note 42, at 10, 15-16;
158. Paust, supra note 1, at 331-32.
159. See Parks, supra note 44, at 540.
160. Pub. L. No. 109-366, 120 Stat. 2600 (2006); see also JORDAN J. PAUST, BEYOND THE LAW: THE BUSH ADMINISTRATION'S UNLAWFUL RESPONSES IN THE "WAR" ON TERROR (forthcoming, Cambridge University Press 2007).
161. 10 U.S.C.A. § 948a(1)-(2) (West Supp. 2007).
162. Id.; cf. GPW, supra note 50, art. 4(A)(1)-(6).
163. See, e.g., Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40-41 (1800) (opinion of Washington, J.) (stating that the word "enemy" applies to "a state of war between . . . two nations" or hostilities and combating between them);
164. id. at 45 (opinion of Chase, J.) (stating that "France was an enemy" because war existed);
165. id. at 45-46 (opinion of Peterson, J.) (stating that United States and France were in a "qualified state of hostility" or war and thus, "the term 'enemy,' applie[d]");
166. War Powers, Libya, and State-Sponsored Terrorism: Hearing Before the H. Subcomm. on Arms Control, International Security and Science of the H. Comm. on Foreign Affairs, 99th Cong. 7 (1986) [hereinafter War Powers Hearing] (statement of Hon. Abraham D. Sofaer, Legal Adviser, U.S. Dep't of State) ("[W]here no confrontation is expected between our units and forces of another state [during efforts to capture non-state terrorists] . . . such units can reasonably be distinguished from . . . 'forces equipped for combat.' And their actions against terrorists differ greatly from the 'hostilities' expressly contemplated by the [War Powers] Resolution.");
167. see also Drumbl, supra note 17, at 908 (implying that one cannot be at war with a non-state, non-belligerent, non-insurgent actor).
168. Additionally, one uses international law as a background for interpretation of federal statutes. See, e.g., JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 70, 99, 120, 124 n.2 (2d ed. 2003);
169. infra note 188. Thus, limitation of the reach of terms such as enemy, combatant, and hostilities under international law to circumstances of actual armed conflict is significant with respect to the proper meaning of 10 U.S.C. § 948a.
170. 10 U.S.C.A. § 948a(1)(i) (identifying the first type of unlawful enemy combatant as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)"). The phrase "associated forces" is ambiguous. Does it include Pakistani military units who reportedly fought alongside the Taliban as U.S. forces went into Afghanistan? See Paust, supra note 18, at 543 n.36.
171. See, e.g., War Powers Hearing, supra note 67, at 8-9 (statement of Hon. Abraham D. Sofaer, Legal Adviser, U.S. Dep't of State).
172. 10 U.S.C.A. § 948a(1)(i).
173. Id. (defining an unlawful enemy combatant as a person "who is not a lawful enemy combatant (including a person who is part of the Taliban)"). One might read the subsection to include a member of the Taliban as an unlawful enemy combatant, but this is not clear.
174. See supra notes 56-58 and accompanying text. It would seem to be rare, but a member of al Qaeda could also be entitled to prisoner of war status if, for example, such person was also a member of the regular armed forces of the Taliban, a militia, or volunteer force attached to a unit of the Taliban.
175. See GPW, supra note 50, art. 4(A)(1);
176. supra notes 58-60.
177. In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 479-80 (D.D.C. 2005), vacated sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert, denied, 127 S. Ct. 1478 (2007).
178. But see YOO, supra note 37, at 39 (regarding erroneous advice of the OLC that the President could engage in sweeping denials of status).
179. See GPW, supra note 50, arts. 2, 5; FIELD MANUAL 27-10, supra note 30, para. 499.
180. See, e.g., 152 CONG. REC. S10,399, 10,401-402 (daily ed. Sept. 28, 2006) (statement of Sen. McCain) (urging final passage of the Military Commissions Act of 2006);
181. R. Jeffrey Smith & Charles Babington, White House, Senators Near Pact on Interrogation Rules, WASH. POST, Sept. 22, 2006, at Al (reporting on remarks of Senator John McCain);
182. see also PAUST, supra note 67, at 70 (noting that courts attempt to interpret federal statutes as if they are consistent with international law);
183. infra note 89 (observing that Supreme Court case law requires that Congress express a clear, unequivocal intent to override a treaty or the treaty retains its primacy as law of the United States).
184. 10 U.S.C.A. § 948a(1)(i).
185. Id.
186. Id. § 948a.
187. Id. § 948a(1)(i).
188. See id. § 948a(2).
189. Compare id., with GPW, supra note 50, art. 4(A)(1)-(6).
190. See 10 U.S.C.A. § 948a(2).
191. Id. § 948a(2)(A).
192. See GPW, supra note 50, art. 4(A)(1). Would the word "regular" preclude coverage of a person in the reserves who is called to active duty? GPW Article 4(A)(1) covers all members of the armed forces.
193. See id.
194. Id.
195. 10 U.S.C.A. § 948a(2)(c).
196. GPW, supra note 50, art. 4(A)(3).
197. See, e.g., PAUST, supra note 67, at 99, 120, 124 n.2.
198. See, e.g., Weinberger v. Rossi, 456 U.S. 25, 35 (1982) ("[C]ongressional expression [to override is] necessary");
199. Cook v. United States, 288 U.S. 102, 120 (1933) (finding that the purpose to override or modify must be "clearly expressed"); Cheung Sum Shee v. Nagle, 268 U.S. 336, 345-46 (1925) (ruling that the Immigration Act "must be construed with the view to preserve treaty rights unless clearly annulled, and we cannot conclude ... a congressional intent absolutely to exclude");
200. United States v. Lee Yen Tai, 185 U.S. 213, 221 (1902) (recognizing that the "purpose . . . must appear clearly and distinctly from the words used" by Congress);
201. PAUST, supra note 67, at 99, 107, 120, 124-25 nn.2-3 (citing additional cases);
202. see also Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 142 (2005) (Ginsburg, J., concurring).
203. See PAUST, supra note 67, at 104-05 (explaining the rights under treaties exception);
204. id. at 106-07, 109 (discussing the law of war exception).
205. See Smith & Babington, supra note 75.
206. 10 U.S.C.A. § 948a(1)(i) (West Supp. 2007).
207. Id. § 948c. But see id. § 948b(a) (providing procedures for use in "military commissions to try alien unlawful enemy combatants engaged in hostilities" (emphasis added)).
208. See GPW, supra note 50, art. 102.
209. See, e.g., Paust, Courting Illegality, supra note 32, at 25-26.
210. See supra note 89. Even if there had been such a clear, unequivocal expression of congressional intent and the statute is later in time, exceptions to the last in time rule based on Supreme Court decisions would assure the primacy of rights under the GPW either under the traditional rights under treaties exception or the law of war exception to the last in time rule.
211. See supra note 90.
212. 10 U.S.C.A. § 948a.
213. See id.
214. Id. § 948a(1)(ii).
215. Cf. Dan Eggen, Justice Department's Brief On Detention Policy Draws Ire, WASH. POST, Nov. 15, 2006, at A3 (describing a motion before the Fourth Circuit, in which the executive claimed a power to detain any foreign national arrested in the United States who is declared to be an enemy combatant).
216. See Jordan J. Paust, Judicial Power To Determine the Status and Rights of Persons Detained Without Trial, 44 HARV. INT'L L.J. 503, 514-25 (2003) (regarding relevant judicial power and responsibility).
217. See id. at 507-10,514.
218. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 324 (1936) (explaining that even in the area of foreign affairs, there must be at least some minimal standard set forth in legislation for compliance with the delegation doctrine).
219. 355 F. Supp. 2d 443 (D.D.C. 2005), vacated sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert. denied, 127 S. Ct. 1478 (2007).
220. Id. at 445.
221. 542 U.S. 466 (2004).
222. In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 454. Concerning this point,
223. see, for example, Paust, Courting Illegality, supra note 32, at 18-20, 25. Furthermore, various treaties require equality of treatment and equal protection. Id. at 25-26.
224. 542 U.S. 507 (2004).
225. In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 467 (quoting Hamdi, 542 U.S. at 533 (plurality opinion)).
226. Id. at 468.
227. Id. at 475.
228. Id. (alterations in original) (citations omitted).
229. Geneva Civilian Convention, supra note 36, art. 5.
230. See, e.g., Paust, supra note 101, at 512-13, cited in Hamdi, 542 U.S. at 520 (plurality opinion). The President is bound by our Constitution to faithfully execute treaty-based law of the United States.
231. See U.S. CONST, art. II, § 3. Therefore, Article 5 of the Geneva Civilian Convention, which recognizes the detainment authority of parties such as the United States, might enhance presidential power to detain certain persons without trial.
232. See, e.g., Paust, supra note 20, at 1359 n.100.
233. See Paust, supra note 101, at 505-10;
234. see also Rasul v. Bush, 542 U.S. 466, 484 (2005) (requiring habeas corpus review for detention of persons at Guantanamo);
235. G.A. Res. 59/191, supra note 14;
236. S.C. Res. 1566, supra note 14 (affirming that human rights law must be complied with while countering terrorism); Paust, supra note 53, at 690-94.
237. See, e.g., José E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT'L L. 175, 199, 210-11, 213 (2006);
238. M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 CASE W. RES. J. INT'L L. 389, 411-13 (2006);
239. Paust, supra note 34, at 836 n.96; Paust, supra note 20, at 1352-56;
240. Leila Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition under International Law, 37 CASE W. RES. J. INT'L L. 309, 309-10 (2006);
241. see also 1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, INT'L COMM. OF THE RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 340-43, 421, 439 (2005);
242. Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, NOV. 2, 2005, at Al;
243. Tim Golden & Eric Schmitt, Detainee Policy Sharply Divides Bush Officials, N.Y. TIMES, Nov. 2, 2005, at Al; Editorial, Rebellion Against Abuse, WASH. POST, NOV. 3,2005, at A20. President Bush admitted that he had authorized secret detentions and "tough" interrogation tactics against secretly-held detainees.
244. See, e.g., Julian E. Barnes, CIA Can Still Get Tough on Detainees, L.A. TIMES, Sept. 8, 2006, at Al; John Donnelly & Rick Klein, Bush Admits to CIA Jails; Top Suspects Are Relocated, BOSTON GLOBE, Sept. 7, 2006, at Al; Ken Herman, Bush Confirms Secret Prisons, Denies Torture, ATLANTA J.-CONST., Sept. 7, 2006, at Al (adding that the CIA secret detention program "had held about 100 detainees");
245. Mark Silva, Bush Confirms Use of CIA Secret Prisons, CHI. TRIB., Sept. 7, 2006, at 1.
246. See, e.g., Geneva Civilian Convention, supra note 36, art. 49 ("Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory . . . are prohibited, regardless of their motive.");
247. id. art. 147 (providing that an "unlawful . . . transfer" is a "grave breach[]");
248. COMMENTARY, supra note 37, at 279-80 ("The prohibition is absolute and allows of no exceptions, apart from those stipulated in paragraph 2.");
249. id. at 363; Rome Statute of the International Criminal Court art. 8(2)(b)(viii), July 17, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute] (stating that the "transfer of all or parts of the population" is a war crime);
250. Alvarez, supra note 116, at 199-208;
251. Paust, supra note 34, at 836 n.96, 850-51 & nn.148-50.
252. See supra notes 36-37 and 117.
253. See, e.g., Paust, supra note 34, at 813-23.
254. Id. at 816-18 & nn.20-21, 820-21;
255. see, e.g., 3 COMMENTARY, supra note 58, at 51 n.l, 76;
256. COMMENTARY, supra note 37, at 50, 595;
257. FIELD MANUAL 27-10, supra note 30, para. 73 (noting that any person who is not a POW is protected under the Geneva Civilian Convention);
258. 1958 U.K. MANUAL, supra note 54, at 174-75;
259. 2004 U.K. MANUAL, supra note 37, at 145, 148, 150, 216, 225;
260. see also Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2796 n.63 (2006);
261. Prosecutor v. Delalic, Case No. IT-96-21-T, Judgment, ¶ 271 (Nov. 16, 1998) ("[T]here is no gap between the Third and the Fourth Geneva Conventions.");
262. MICHAEL BOTHE, ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS 261-62 (1982);
263. HENCKAERTS & DOSWALD-BECK, INT'L COMM. OF THE RED CROSS, supra note 116, at 389;
264. HILAIRE MCCOUBREY, INTERNATIONAL HUMANITARIAN LAW: MODERN DEVELOPMENTS IN THE LIMITATION OF WARFARE 137 (2d ed. 1998);
265. Knut Dörmann, The Legal Situation of "Unlawful/Unprivileged Combatants," 85 INT'L REV. RED CROSS 45 (2003);
266. Derek Jinks, Protective Parity and the Laws of War, 79 NOTRE DAME L. REV. 1493, 1504, 1510-11 (2004);
267. Marco Sassòli, "Unlawful Combatants": The Law and Whether It Needs To Be Revised, 97 AM. SOCY INT'L L. PROC. 196, 197 (2003);
268. David L. Sloss, Availability of U.S. Courts to Detainees at Guantanamo Bay Naval Base-Reach of Habeas Corpus-Executive Power in War on Terror, 98 AM. J. INT'L L. 788, 796 (2004);
269. Johannes van Aggelen, A Response to John C. Yoo, "The Status of Soldiers and Terrorists Under the Geneva Convention," 4 CHINESE J. INT'L L. 167, 171-77 (2005);
270. cf. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 161 (D.D.C. 2004) (finding that if a detainee is not a POW, rights and protections exist under Common Article 3), rev'd, 415 F.3d 33 (D.C. Cir. 2005), rev'd, 126 S. Ct. 2749 (2006);
271. U.S. DEP'T OF ARMY, SUBJECT SCHEDULE 27-1: THE GENEVA CONVENTIONS OF 1949 AND HAGUE CONVENTION NO. IV OF 1907, at 7-8 (1970) ("[TJhese rules are embodied in one general principle: treat all prisoners of war, civilians, or other detained personnel humanely.... To repeat, we must insure that all persons are treated humanely. These persons may not be subjected to murder, torture, corporal punishment, mutilation, or any form of physical or mental coercion.").
272. See, e.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 478-79 (D.D.C. 2005) (noting that the Geneva Conventions contain individual rights and can be self-executing), vacated sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert, denied, 127 S. Q. 1478 (2007); Hamdan, 344 F. Supp. 2d at 164-65;
273. PAUST, supra note 67, at 492, 505-07 nn.68, 72-74;
274. Paust, Before the Supreme Court, supra note 32, at 836 n.48; Paust, supra note 101, at 515-17 & n.43. They also reflect customary international law that is directly incorporable. See infra note 124.
275. See Paust, supra note 34, at 829 & n.62;
276. infra note 164 and accompanying text. Specifically, it is irrelevant that al Qaeda did not and could not ratify the treaties, since members of al Qaeda are undoubtedly nationals of a signatory state. Id. Professor John Yoo still does not understand this fundamental point concerning the reach of rights as well as duties to nationals of a party to a treaty.
277. See, e.g., YOO, supra note 37, at 23, 237.
278. See Geneva Civilian Convention, supra note 36, art. 3;
279. id. art. 5 (stating that security detainees "shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial").
280. See, e.g., Hamdan, 126 S. Ct. at 2796 n.63;
281. Hamdan, 344 F. Supp. 2d at 162-63;
282. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 113-14 (June 27) ("There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which . . . reflect . . . 'elementary considerations of humanity.'");
283. id. at 129 ("[G]eneral principles of humanitarian law include a particular prohibition, accepted by States, and extending to activities which occur in the context of armed conflicts, whether international in character or not.");
284. Abella v. Argentina, Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L./V/II.97, doc. 6 rev. ¶ 158 (1997);
285. Prosecutor v. Delalic, Case No. IT-96-21-A, Judgment, ¶¶ 143, 150 (Feb. 20, 2001);
286. Prosecutor v. Tadic, IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 102 (Oct. 2, 1995) ("The International Court of Justice has confirmed that these rules reflect 'elementary considerations of humanity' applicable under customary international law to any armed conflict, whether it is of an internal or international character. Therefore, at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant.");
287. Prosecutor v. Tadic, IT-94-1-T, Decision on the Defence Motion on Jurisdiction, ¶¶ 65, 67, 74 (Aug. 10, 1995);
288. COMMENTARY, supra note 37, at 14 ("This minimum requirement in the case of a non-international armed conflict, is a fortiori applicable in international conflicts.");
289. HENCKAERTS & DOSWALD-BECK, INT'L COMM. OF THE RED CROSS, supra note 116, at 299, 306-19 (observing that the prohibitions reflected in Common Article 3 are "fundamental guarantees" that apply as "customary international law applicable in both international and non-international armed conflicts");
290. PAUST, BASSIOUNI ET AL., supra note 34, at 693, 695, 813-14, 816;
291. INT'L COMM. OF THE RED CROSS, INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICT 9 (2003);
292. MARY ELLEN O'CONNELL, INTERNATIONAL LAW AND THE USE OF FORCE 390 (2005);
293. OPERATIONAL LAW HANDBOOK, supra note 46, at 67, 69;
294. Jinks, supra note 120, at 1508-11;
295. Paust, supra note 34, at 816-17 & n.19;
296. Paust, supra note 101, at 511 n.27;
297. see also 2004 U.K. MANUAL, supra note 37, at 5 & n.13 (recognizing that among "important judgments," the I.C.J. "referred to the rules in Common Art. 3 as constituting 'a minimum yardstick' in international armed conflicts");
298. Letter from John C. Yoo, Deputy Assistant Att'y Gen., Office of Legal Counsel, U.S. Dep't of Justice, to William H. Taft, IV, Legal Adviser, U.S. Dep't of State 3-4 (Mar. 28, 2002) (on file with Catholic University Law Review) (noting that in a March 22, 2002 memorandum prepared by Legal Adviser Taft, it is stated "that all combatants are entitled, 'as a minimum, [to] the guarantees of article 3'" and that the March 22 memo also states "that '[i]t is widely recognized internationally . . . that common Article 3 reflects minimum customary international law standards for both internal and international armed conflicts'" (alterations and omission in original) (citation omitted));
299. Letter from William H. Taft, IV, Adviser, U.S. Dep't of State, to John C. Yoo, Deputy Assistant Att'y Gen., U.S. Dep't of Justice 2 (Jan. 23, 2002) (on file with Catholic University Law Review) ("Even those terrorists captured in Afghanistan, however, are entitled to the fundamental humane treatment standards of common Article 3 of the Geneva Conventions-the text, negotiating record, subsequent practice and legal opinion confirm that common Article 3 provides the minimal standards applicable in any armed conflict."). Customary international law is directly incorporable in the U.S. and binds the executive.
300. See, e.g., PAUST, supra note 67, at 7-12, 169-73, 175, 488-90, 493-94;
301. Paust, supra note 34, at 856, 858-61;
302. Paust, Before the Supreme Court, supra note 32, at 83940 n.53.
303. Geneva Civilian Convention, supra note 36, art. 3(1);
304. see also supra notes 36-37 and accompanying text.
305. Paust, supra note 34, at 818 & n.25;
306. see Geneva Civilian Convention, supra note 36, art. 3(1)(d);
307. Hamdan, 126 S. Ct. at 2796-97;
308. Paust, supra note 53, at 678 n.9;
309. see also Rome Statute, supra note 117, art. 8(2)(a)-(b).
310. See, e.g., HENCKAERTS & DOSWALD- BECK, INT'L COMM. OF THE RED CROSS, supra note 116, at 299-306;
311. Paust, supra note 34, at 820-23;
312. Paust, supra note 101, at 505 n.5.
313. See, e.g., International Covenant on Civil and Political Rights art. 7, Dec. 19, 1966, S. EXEC. Doc. E, 95-2 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR];
314. Paust, supra note 34, at 821 n.40. Human rights are guaranteed universally and in all contexts to all persons under the United Nations Charter and in case of an unavoidable clash between Charter-based human rights and law of war treaties, human rights will prevail.
315. See U.N. Charter arts. 55(c), 56,103. Human rights that are also customary jus cogens will prevail over any inconsistent more ordinary international law. Id. Thus, human rights jus cogens will prevail over ordinary laws of war. However, there will rarely be an unavoidable clash between human rights law and the laws of war. For example, concerning the human right to freedom from arbitrary deprivation of life,
316. see, for example, Jordan J. Paust, The Right to Life in Human Rights Law and the Law of War, 65 SASKATCHEWAN L. REV. 411, 412-17 (2002).
317. See, e.g., Paust, supra note 34, at 835, 838-41, 843-46;
318. see also Douglas Jehl, Report Warned ClA. on Tactics in Interrogation, N.Y. TIMES, Nov. 9, 2005, at Al.
319. See, e.g., Paust, supra note 34, at 840-41, 843-44. Customary human rights are directly incorporable in the United States.
320. See, e.g., PAUST, supra note 67, at 7-12, 224-28, 370-71. Treaty-based human rights in the ICCPR can be self-executing at least for some purposes.
321. See, e.g., id. at 361-62, 381 n.12; Paust, Before the Supreme Court, supra note 32, at 852-54.
322. See, e.g., Diane Marie Amann, Abu Ghraib, 153 U. PA. L. REV. 2085, 2086 (noting the "self-conscious creation of the Executive" and "deliberate executive construction" more generally of a process of interrogation violative of law);
323. id. at 2094 (recounting Attorney General Gonzales' advice to President Bush that '"Geneva's strict limitations'" should not be observed);
324. Paust, supra note 34, at 834-36, 838-50;
325. David Johnston, At a Secret Interrogation, Dispute Flared Over Tactics, N.Y. TIMES, Sept. 10, 2006, at 1; Chitra Ragavan, Cheney's Guy, U.S. NEWS & WORLD RPT., May 29, 2006, at 32, 35;
326. Golden & Schmitt, supra note 116;
327. Eric Lichtblau, Gonzales Says Humane-Policy Order Doesn't Bind C.I.A., N.Y. TIMES, Jan. 19, 2005, at A17 (noting that Gonzales still claimed in 2005 that CIA and nonmilitary personnel are outside the reach of any remaining limitations on treatment contained in President Bush's Feb. 7, 2002 directive and that a congressional ban on cruel and inhumane treatment does not apply to '"aliens overseas'");
328. Editorial, Impunity, WASH. POST, Apr. 26, 2005, at A14 (reporting that a meeting chaired by Gonzales approved simulated drowning);
329. Josh White, Military Lawyers Say Tactics Broke Rules, WASH. POST, Mar. 16, 2006, at A13;
330. Evan Thomas & Michael Hirsh, The Debate Over Torture, NEWSWEEK, Nov. 21, 2005, at 26, 28;
331. Jane Mayer, The Hidden Power: The Legal Mind Behind the White House's War on Terror, NEW YORKER, July 3, 2006, at 44;
332. Jane Mayer, The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees Was Thwarted, NEW YORKER, Feb. 27, 2006, at 32, 33;
333. Morning Edition (National Public Radio broadcast Nov. 3, 2005) (discussing Vice President Cheney's role in the Iraq war);
334. see also James Gordon Meek, Torture's No Good, Army Cadets Told, DAILY NEWS (New York), Nov. 13, 2005, at 24 (reporting former Secretary of State aide Col. Larry Wilkerson's remarks regarding the Administration's so-called prohibition of torture: "That is not what I saw in the paperwork coming out of the vice president's office and the office of the secretary of defense."');
335. Powell Aide: Torture 'Guidance' From VP, CNN.COM, Nov. 20, 2005, http://www.cnn.com/2005/US/11/20/torture/index.html (reporting that Wilkerson has no doubt that Cheney provided the philosophical guidance and flexibility for torture of detainees).
336. See, e.g., Paust, supra note 34, at 843 & n.119;
337. White, supra note 131.
338. Marjorie Cohn, Abu Ghraib General Lambastes Bush Administration, TRUTHOUT, Aug. 24, 2005, http://www.truthout.Org/docs_2005/082405Z. shtml#l.
339. Id.
340. Id.
341. The Torture Question: Interview with Janis Karpinski, Frontline (Aug. 5, 2005), http://www.pbs.org/wgbh/pages/frontline/torture/interviews/karpinski. html;
342. see also Paust, supra note 34, at 846-47, 847 nn.133-35.
343. See YOO, supra note 37, at ix (noting that coercive interrogation and denial of application of Geneva law "policies were part of a common, unifying approach to the war on terrorism");
344. id. at 35 (observing that instead of "following the Geneva Conventions," the inner circle decided whether such "would yield any benefits or act as a hindrance");
345. id. at 39-40 (stating that the inner circle believed that following Geneva law would "interfere with our ability to ... interrogate" since "Geneva bars 'any form of coercion'"; as a result, "[t]his became [a] central issue," and following '"Geneva's strict limitations on . . . questioning' . . . made no sense");
346. id. at 43 ("[T]reating the detainees as unlawful combatants would increase flexibility in detention and interrogation . . . .");
347. Paust, supra note 34, at 824-26.
348. See, e.g., Dan Eggen, CIA Acknowledges 2 Interrogation Memos, WASH. POST, Nov. 14, 2006, at A29;
349. David Johnston, C.I.A. Tells of Bush's Directive on the Handling of Detainees, N.Y. TIMES, Nov. 15, 2006, at A14;
350. see also Johnston, supra note 131 (stating that President Bush authorized the CIA to secretly detain and interrogate persons in a September 17, 2001 directive known as a memorandum of notification and that harsh interrogation tactics were devised in late 2001 and early 2002);
351. cf. Paust, supra note 34, at 836 (describing a secret presidential directive to transfer detainees for secret detention and interrogation).
352. Remarks on the War on Terror, 42 WEEKLY COMP. PRES. Doc. 1569, 1570-71, 1573 (Sept. 6, 2006);
353. see, e.g., Barnes, supra note 116;
354. Donnelly & Klein, supra note 116;
355. Herman, supra note 116 (adding that the CIA secret detention program "had held about 100 detainees");
356. Silva, supra note 116;
357. see also Eggen, supra note 138;
358. Johnston, supra note 138.
359. Paust, supra note 34, at 861-62;
360. see also 4 COMMENTARY, supra note 37, at 349, 583, 594, 602;
361. FIELD MANUAL 27-10, supra note 30, para. 499 ("The term 'war crime' is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.").
362. See, e.g., U.S. CONST, art. II, § 3;
363. PAUST, supra note 67, at 7-12, 67-70, 169-73, 175, 488-90, 493-94;
364. Paust, supra note 34, at 856, 858-61;
365. Paust, Before the Supreme Court, supra note 32, at 839 n.53. The primacy of the laws of war has also been recognized since the Founding.
366. See, e.g., PAUST, supra note 67, at 106-07.
367. See, e.g., Paust, supra note 101, at 514, 517-24;
368. supra note 141.
369. See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). This section is borrowed from a forthcoming book, PAUST, supra note 64.
370. Hamdan, 126 S. Ct. at 2759.
371. Mat 2773.
372. Id. at 2775-76 (quoting Ex parte Quirin, 317 U.S. 1, 28-29 (1942)).
373. Id. at 2776-77.
374. Id. at 2777 (alterations in original) (citation omitted) (quoting WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 836-39 (2d ed. 1920)). Concerning such recognitions, see also Paust, Courting Illegality, supra note 32, at 5-9, 26-27, 29.
375. Hamdan, 126 S. Ct. at 2777;
376. see also In re Yamashita, 327 U.S. 1, 19 & n.7 (1946) (stating that when Congress enacted the 1916 Articles of War, it sanctioned the uses of a military commission contemplated by the common law of war, which is a "war court").
377. Hamdan, 126 S. Ct. at 2785 (noting Justice Kennedy's observation in Rasul that "'Guantanamo Bay is . . . far removed from any hostilities'" (omission in original) (quoting Rasul v. Bush, 542 U.S. 466, 487 (2004) (Kennedy, J., concurring))).
378. Id.
379. Geneva Civilian Convention, supra note 36, art. 3(1)(d).
380. Hamdan, 126 S. Ct. at 2759;
381. see also Geneva Civilian Convention, supra note 36, art. 3(1)(d).
382. Hamdan, 126 S. Ct. at 2786 (quoting Ex parte Quirin, 317 U.S. 1, 28 (1942)).
383. Id. (omission in original) (citation and footnote omitted).
384. Id. at 2786-87 (citations omitted). As Justice Kennedy emphasized: These structural differences between the military commissions and courts-martial - the concentration of functions, including legal decisionmaking, in a single executive official; the less rigorous standards for composition of the tribunal; and the creation of special review procedures in place of institutions created and regulated by Congress - remove safeguards that are important to the fairness of the proceedings and the independence of the court. Id. at 2807 (Kennedy, J., concurring). He added: The rule here could permit admission of multiple hearsay and other forms of evidence generally prohibited on grounds of unreliability. Indeed, the commission regulations specifically contemplate admission of unsworn written statements; and they make no provision for exclusion of coerced declarations save those "established to have been made as a result of torture." Id. at 2808 (citations omitted);
385. see also Paust, Courting Illegality, supra note 32, at 10-18;
386. Paust, supra note 53, at 678-79, 685-90.
387. See Hamdan, 126 S. Ct. at 2788-90.
388. Id. at 2788 (footnote omitted) (citing Madsen v. Kinsella, 343 U.S. 341, 353 (1952);
389. WAR OF THE REBELLION 248 (2d ed. 1894);
390. Paust, Courting Illegality, supra note 32, at 3-5).
391. Id. at 2790.
392. Id. at 2791-92 (citations omitted).
393. Justice Kennedy added that the requirement in Common Article 3 of the Geneva Conventions that there be a "'regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples' supports, at the least, a uniformity principle similar to that codified in § 836(b)" of the UCMJ. Id. at 2803 (Kennedy, J., concurring).
394. Id. at 2793 (majority opinion).
395. Id. at 2794 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 520-21 (2004) (plurality opinion);
396. United States v. Rauscher, 119 U.S. 407 (1886)).
397. Id.
398. Id. at 2795 (adding that "there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories," Common Article 3, and it "affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory 'Power' who are involved in a conflict 'in the territory of a signatory");
399. see also id. at 2796 n.63 (quoting 3 COMMENTARY, supra note 58, at 35;
400. COMMENTARY, supra note 37, at 51;
401. U.S. ARMY JUDGE ADVOCATE GENERAL'S LEGAL CTR. & SCH., LAW OF WAR HANDBOOK 144 (2004);
402. Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 102 (Oct. 2, 1995)).
403. Geneva Civilian Convention, supra note 36, art. 3(1)(d).
404. Hamdan, 126 S. Ct. at 2802 (Kennedy, J., concurring).
405. Id. at 2796-97 (majority opinion) (alteration in original) (quoting 4 COMMENTARY, supra note 37, at 340;
406. HENCKAERTS & DOSWALD-BECK, INT'L COMM. OF THE RED CROSS, supra note 116, at 355).
407. Id. at 2797 (alteration in original) (citation omitted). Justice Kennedy added that the "regularly constituted" requirement reflects "the importance of standards deliberated upon and chosen in advance of crisis." Id. at 2799-2800 (Kennedy, J., concurring). This point is relevant also to the standards rushed through Congress during creation of the Military Commissions Act.
408. Id. at 2797 n.65 (majority opinion) ("Commission Order No. 1, § 11 . . . provid[es] that the Secretary of Defense may change the governing rules 'from time to time . . . .'" (citation omitted)).
409. Id. at 2797 (plurality opinion).
410. Id. Justice Stevens also stated: "Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. Indeed, it appears that the Government 'regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.'" Id. (alteration in original) (quoting William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 YALE J. INT'L L. 319, 322 (2003)).
411. Id. (quoting Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 75(4)(e), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]). Justice Stevens aptly recognized in footnote 66 that "[o]ther international instruments to which the United States is a signatory include the same basic protections set forth in Article 75. Id. at 2797 n.66 (citing ICCPR, supra note 128, art. 14). Justice Stevens further noted: Following World War II, several defendants were tried and convicted by military commission for violations of the law of war in their failure to afford captives fair trials before imposition and execution of sentence. In two such trials, the prosecutors argued that the defendants' failure to apprise accused individuals of all evidence against them constituted violations of the law of war. Id. (citing 5 U.N. WAR CRIMES COMMISSION, LAW REPORTS OF TRIALS OF WAR CRIMINALS 25, 66 (trials of Sergeant-Major Shigeru Ohashi and General Tanaka Hisakasu).
412. Id. at 2798 (citations and footnote omitted).
413. See, e.g., Paust, Courting Illegality, supra note 32, at 10-18;
414. Paust, supra note 53, at 678-79, 682, 685-90.
415. See 10 U.S.C.A. §§ 948a(1)(i)-(ii), 948b(a), 948c (West Supp. 2007).
416. Id. § 948c.
417. See GPW, supra note 50, arts. 4(A)-(B), 102.
418. Hamdan, 126 S. Ct. at 2778-86.
419. See 10 U.S.C.A. § 948b.
420. See 28 U.S.C.A. § 2241(e), note (West Supp. 2007).
421. See supra notes 89, 96.
422. See Paust, Courting Illegality, supra note 32, at 10-11, 15;
423. Paust, supra note 53, at 685-86.
424. See 10 U.S.C.A. § 950c.
425. See id. § 950g(a)-(c).
426. See id. § 950g(d).
427. Id. § 950g(c).
428. See, e.g., Henfield's Case, 11 F. Cas. 1099, 1101 (C.C.D. Pa. 1793) (No. 6,360) (opinion of Jay, C.J.);
429. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 111 (1987);
430. PAUST, supra note 67, at 7-11, 67-80;
431. PAUST, VAN DYKE & MALONE, supra note 23, at 123-47.
432. See, e.g., Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 142 (2005) (Ginsburg, J., concurring);
433. Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984);
434. Weinberger v. Rossi, 456 U.S. 25, 32 (1982);
435. United States v. Flores, 289 U.S. 137, 159 (1933);
436. Cook v. United States, 288 U.S. 102, 120 (1933);
437. United States v. Payne, 264 U.S. 446, 448 (1924);
438. MacLeod v. United States, 229 U.S. 416, 434 (1913);
439. Whitney v. Robertsott, 124 U.S. 190, 194 (1888);
440. The Pizarro, 15 U.S. (2 Wheat.) 227, 245-46 (1817);
441. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801);
442. 9 Op. Att'y Gen. 356, 362-63 (1859) ("A law . . . must be made and executed according to the law of nations."); 1 Op. Att'y Gen. 26, 27 (1792);
443. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 114 (1987);
444. PAUST, supra note 67, at 12-13, 43 n.53, 58 n.73, 70, 99, 101, 107, 120, 124 n.2, 134 n.18, 137 n.41, 143 n.73;
445. PAUST, VAN DYKE & MALONE, supra note 23, at 155-56;
446. see also Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality opinion) ("[O]ur understanding [of the AUMF] is based on longstanding law-of-war principles.");
447. id. at 551 (Souter, J., dissenting in part and concurring in judgment) ("[T]here is reason to question whether the United States is acting in accordance with the laws of war . . . . I conclude accordingly that the Government has failed to support the position that the [AUMF] authorizes the described detention . . . .").
448. See 10 U.S.C.A. § 949a(b)(2)(E)(i) ("[H]earsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission . . . .").
449. Paust, supra note 53, at 688-89.
450. 10 U.S.CA. § 949a(b)(2)(A).
451. Id. § 949j(c)(B)-(C);
452. see also id. § 949d(f)(2)(A)(ii)-(iii).
453. Id. § 948r(b).
454. Pub. L. No. 109-148, § 1003(d), 119 Stat. 2739, 2740.
455. See 10 U.S.C.A. § 948r(c);
456. see also id. § 949a(b)(2)(C) ("A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r . . . .").
457. Id. § 948r(d)(1)-(3).
458. See, e.g., Geneva Civilian Convention, supra note 36, art. 3(1) (providing that detainees must be "treated humanely," and prohibiting mutilation, "outrages upon personal dignity," and "humiliating" treatment);
459. id. art. 27 (requiring that persons be "humanely treated");
460. id. art. 31 ("No physical or moral coercion shall be exercised . . . in particular to obtain information . . . ."); id. art. 32 (prohibiting "physical suffering");
461. id. art. 33 ("[A]ll measures of intimidation or of terrorism are prohibited.");
462. id. art. 147 (stating that "inhuman treatment" and willfully causing "great suffering or serious injury" are "grave" breaches);
463. GPW, supra note 50, arts. 3(1), 13-14, 130;
464. see also infra note 198.
465. See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 15, Dec. 10, 1984,
466. S. TREATY DOC. NO. 100-20 (1988), 1465 U.N.T.S. 85 ("Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be involved as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.");
467. ICCPR, supra note 128, art. 14(3)(g) ("[E]veryone shall be entitled . . . [n]ot to be compelled . . . to confess guilt");
468. see also Garcia Perez v. Peru, Case 11.006, Inter-Am. C.H.R, Report No. 1/95, OEA/Ser.L./V/II.88, doc. 9 rev. (1995) (applying exclusionary rule to material seized during a search in violation of due process and other rights);
469. United Nations, Human Rights Comm., General Comment 20: Article 7, para. 12 (1992), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 32 (July 29, 1994) ("It is important . . . that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment [under Article 7 of the ICCPR]");
470. 3 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 1093-94 (1951) [hereinafter TRIALS OF WAR CRIMINALS] (addressing, in United States v. Altstoetter (The Justice Case), the war crime responsibility of defendant Klemm, and noting: "[I]t can hardly be assumed that the defendant Klemm was unaware of the practice of the Gestapo with regard to obtaining confessions. He had dealt with this matter during his early period with the department of justice. It is hardly credible that he believed that the police methods which at an earlier time were subject to some scrutiny by the Ministry of Justice, had become less harsh because the Gestapo . . . was placed beyond the jurisdiction of law. He must have been aware that a prolific source of clear cases based on confessions and, therefore, legally incontestable, came to him from the obscurity of the torture chamber. . . . More specifically, Klemm knew of abuses in concentration camps. He knew of the practice of severe interro gations . . . . While he as in the Party Chancellery he wrote the letter . . . denying the application of the German . . . law to Poles, Jews, and gypsies.").
471. See supra notes 89, 96.
472. See supra note 96.
473. In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 472 (D.D.C. 2005), vacated sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert. denied, 127 S. Ct. 1478 (2007);
474. see also Beecher v. Alabama, 389 U.S. 35, 38 (1967) (per curiam). The Supreme Court has condemned the totalitarian practice of using "unrestrained power to seize persons . . . , hold them in secret custody, and wring from them confessions by physical and mental torture." Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944);
475. see also Brown v. Mississippi, 297 U.S. 278, 285-86 (1936) ("The rack and torture chamber may not be substituted for the witness stand. . . . It would be difficult to conceive of methods more revolting to the sense of justice . . . ."). Concerning constitutional textual and structural restraints on executive conduct abroad,
476. see also Paust, Courting Illegality, supra note 32, at 18-21.
477. See 10 U.S.C.A. § 950f(d) (West Supp. 2007) (scope of review of the CMCR);
478. id. § 950g(b) (scope of review of the D.C. Circuit).
479. Id. § 949c(b)(3)(A), (D).
480. Id. § 949c(b)(4).
481. Id. § 950v(b)(27)-(28).
482. See, e.g., United States ex rel. Wessels v. McDonald, 265 F. 754, 762 (E.D.N.Y. 1920) ("A spy may not be tried under the international law when he returns to his own lines, even if subsequently captured, and the reason is that, under international law, spying is not a crime, and the offense which is against the laws of war consists of being found during the war in the capacity of a spy.");
483. PAUST, BASSIOUNI ET AL., supra note 34, at 1025;
484. FIELD MANUAL 27-10, supra note 30, para. 77 ("[Spying is] no offense against international law. Spies are punished, not as violators of the laws of war . . . .");
485. see also Totten v. United States, 92 U.S. 105, 106 (1876) (finding that the use of spies in enemy territory is appropriate during war);
486. Smith v. Shaw, 12 Johns. Cas. 257, 265-66 (N.Y. Sup. Ct. 1815) (holding that a civilian who allegedly was an enemy spy exciting mutiny and insurrection during a war could not be detained by the U.S. military for trial in a military tribunal);
487. YOO, supra note 37, at 113. Spying is a crime against the state or "pure political offense" for which extradition is not allowed.
488. See, e.g., PAUST, BASSIOUNI ET AL., supra note 34, at 332-33, 367-69.
489. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2759 (2006) (ruling that neither the old UCMJ nor the "law of war supports trial by this commission for the crime of conspiracy");
490. id. at 2778-79 ("Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war. These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict. But the deficiencies in the time and place allegations also underscore - indeed are symptomatic of - the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission.");
491. id. at 2780-81 ("The crime of 'conspiracy' has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions - the major treaties on the law of war." (footnote omitted));
492. id. at 2782 ("If anything, Quirin supports Hamdan's argument that conspiracy is not a violation of the law of war. Not only did the Court pointedly omit any discussion of the conspiracy charge, but its analysis of Charge I placed special emphasis on the completion of an offense; it took seriously the saboteurs' argument that there can be no violation of a law of war - at least not one triable by military commission - without the actual commission of or attempt to commit a 'hostile and warlike act.'");
493. id. at 2783 ("Winthrop confirms this understanding . . . when he emphasizes that 'overt acts' constituting war crimes are the only proper subject at least of those military tribunals not convened to stand in for local courts." (citation omitted));
494. id. at 2784-85 ("Finally, international sources confirm that the crime charged here is not a recognized violation of the law of war. . . . [N]one of the major treaties governing the law of war identifies conspiracy as a violation thereof. . . . As one prominent figure from the Nuremberg trials has explained, members of the Tribunal objected to recognition of conspiracy as a violation of the law of war on the ground that '[t]he Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war.'" (alteration in original) (quoting TELFORD TAYLOR, ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 36 (1992))).
495. See supra text accompanying notes 147-48, 151.
496. See, e.g., Geneva Civilian Convention, supra note 36, art. 33;
497. Protocol I, supra note 172, art. 51;
498. TRIALS OF WAR CRIMINALS, supra note 198, at 21, 1031 (recognizing Hitler's use of secret trials with the "purpose of terrorizing the victims' relatives and associates");
499. id. at 1058-59 ("The IMT held that the Hitler . . . decree was 'a systematic rule of violence, brutality, and terror,' and was therefore a violation of the laws of war as a terroristic measure. . . . This secrecy of the proceedings was a particularly obnoxious form of terroristic measure. . . .").
500. See 10 U.S.C.A. § 950v(b)(24).
501. Id.
502. See, e.g., G.A. Res. 49/60, supra note 14, ¶ 3 (declaring as unjustifiable all "[c]riminal acts intended or calculated to provoke a state of terror . . . for political purposes");
503. PAUST, BASSIOUNI ET AL., supra note 34, at 997, 1004-05;
504. Paust, supra note 14, at 701, 703-05;
505. see also 17 OXFORD ENGLISH DICTIONARY 820 (2d ed. 1989) (defining terror as "[t]he state of being terrified or greatly frightened; intense fear, fright, or dread").
506. See supra note 89.
507. General Lennox made the remarks during the West Point Conference.
508. See Geoffrey S. Corn, Pentagon Process Subverted? The Lost Battle of Alberto Mora, JURIST, Feb. 22, 2006, http://jurist.law. pitt.edu/forumy/2006/02/pentagon-process-subverted-lost-battle.php.