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This chapter discusses trial and punishment for battlefield misconduct in the context of the United States “war on terror” since 2001, examining the basis for the use of military commissions to try violations of the law of war, as well as recent commission trials. It traces the development of the U.S. military commissions at Guantanamo, and the two Military Commissions Acts ultimately enacted to authorize them in the aftermath of the Supreme Court’s Hamdan v. Rumsfeld decision. Although there is nothing controversial in the use of military courts to compel compliance with the laws and customs of war, their use to try operatives captured in the course of the armed struggle against transnational terrorism is subject to considerable controversy. This chapter examines why such use can and should be considered legitimate, but also how this legitimacy is contingent on respecting substantive and procedural limitations that are inherent in the LOAC.

This chapter examines the response by the president and Congress to the Supreme Court rulings in three “enemy combatant” cases: Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. In particular, it discusses the Bush administration's attempt to nullify the Supreme Court's ruling in Rasul by creating a rigged system of military status tribunals intended to ratify prior decisions that prisoners were “enemy combatants” and to prevent habeas corpus hearings from going forward in federal courts. It also considers the Detainee Treatment Act of 2005, which purportedly stripped federal courts of habeas jurisdiction over Guantánamo detentions altogether. Finally, it analyzes another landmark case, Hamdan v. Rumsfeld, in which the Supreme Court invalidated the president's military commissions and ruled that no prisoner could be held without the baseline protections set out in Common Article 3 of the Geneva Conventions.

Following a trail of state documents, this chapter examines how the U.S. government produced not only a new rightless subject in the “enemy combatant,” but also a parallel, quasi-legal system created specifically to perform the workings of justice, while in fact maintaining conditions of rightlessness in the face of legal and political challenges. Based on research in the Torture Archives and records of the Department of Defense, I trace a legal history of these emergent subjects and systems by analyzing executive memos that circulated following September 11, 2001 attacks; federal court cases like Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008); and legislation like the Detainee Treatment Act (2005) and Military Commissions Act (2006, 2009). The chapter then focuses on the testimonies of enemy combatants, who seized the opportunities to speak before the quasi-legal stages of the Combatant Status Review Tribunals and military commissions to testify to the realities of rightlessness and leverage incisive critiques of U.S. state violence.

This chapter examines the response by the president and Congress to the Supreme Court rulings in three “enemy combatant” cases: Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. In particular, it discusses the Bush administration's attempt to nullify the Supreme Court's ruling in Rasul by creating a rigged system of military status tribunals intended to ratify prior decisions that prisoners were “enemy combatants” and to prevent habeas corpus hearings from going forward in federal courts. It also considers the Detainee Treatment Act of 2005, which purportedly stripped federal courts of habeas jurisdiction over Guantánamo detentions altogether. Finally, it analyzes another landmark case, Hamdan v. Rumsfeld, in which the Supreme Court invalidated the president's military commissions and ruled that no prisoner could be held without the baseline protections set out in Common Article 3 of the Geneva Conventions.

This chapter shows how the issue of Guantánamo transformed, from the site of a few “minor” instances of abuse, into the domestic and global problem it is today. Two key documents revealed that the abuse in Guantánamo was comparable to that in Abu Ghraib: the December 2004 release of FBI emails describing detention and interrogation practices at the facility, and the June 2005 leak of the military's interrogation log of Mohammed al-Qahtani to Time magazine. Two further developments in the political environment contributed to the stigma surrounding Guantánamo: the Supreme Court ruling against the administration in the landmark case of Hamdan v. Rumsfeld, as well as the subsequent 2006 midterm election, which reconfigured political power and permitted congressional Democrats to employ committee agendas to broaden the discursive scope of their investigations of torture. Within this context, a discourse that acknowledged and criticized U.S. torture finally solidified.

An individual accused of involvement in terrorism must be brought to some form of trial, but the American criminal law process is inapplicable to the current conflict. To guarantee the suspect certain rights and privileges, the hybrid paradigm would provide the following: 1) lawful coercive interrogation of a suspect ranted Miranda protections; 2) remand hearings before a court designed to prevent indefinite detention; 3) the right to counsel of the suspect's own choosing; 4) admissibility of the intelligence information into trial; 5) bench trials before specially trained judges; 6) conviction based in part (but not more than 50%) on intelligence information; 7) sentencing guidelines; and 8) and right to appeal to an independent judiciary. The hybrid paradigm also calls for the Foreign Intelligence Surveillance Act (FISA) Court to become a domestic terror court premised on a Congressional amendment to Article III of the Constitution.

This chapter addresses the conditions that bring the law of armed conflict into force: the critical predicate for a nation to assert the broad authority inherent in situations of armed conflict and for individuals to claim the humanitarian protections of the law. The chapter will explain why the initial U.S. interpretation of the widely accepted law-triggering equation generated such criticism and controversy, and how that interpretation deviated from long-standing U.S. military policy. The chapter will then explain why national authorities abandoned this initial interpretation, but also why this abandonment in no way eliminated controversy related to characterizing the struggle against al-Qaeda as a legitimate justification for exercising the authority to use wartime powers to disrupt and disable this transnational terrorist threat.

This chapter examines the political backlash to the Supreme Court ruling in Hamdan v. Rumsfeld, which paved the way for the Military Commissions Act of 2006. It considers how the Bush administration, following its defeat in Hamdan, attempted to justify to the American public extrajudicial detention, military commissions, and torture and to institutionalize those practices through the Military Commissions Act, which purported to deny habeas corpus to noncitizens held as “enemy combatants.” This new legislation also undermined the Geneva Conventions, sought to immunize U.S. officials for past abuse of detainees, and revived military commissions. The chapter also analyzes the Supreme Court's decision in Boumediene v. Bush, in which it decisively rejected the president's claim that the Constitution was limited to the United States or to American citizens.

This chapter examines the political backlash to the Supreme Court ruling in Hamdan v. Rumsfeld, which paved the way for the Military Commissions Act of 2006. It considers how the Bush administration, following its defeat in Hamdan, attempted to justify to the American public extrajudicial detention, military commissions, and torture and to institutionalize those practices through the Military Commissions Act, which purported to deny habeas corpus to noncitizens held as “enemy combatants.” This new legislation also undermined the Geneva Conventions, sought to immunize U.S. officials for past abuse of detainees, and revived military commissions. The chapter also analyzes the Supreme Court's decision in Boumediene v. Bush, in which it decisively rejected the president's claim that the Constitution was limited to the United States or to American citizens.

This chapter focuses on the force-feeding of hunger strikers in Guantanamo to highlight the cruel and inhuman manner that the U.S. military, including military physicians, are treating against prisoners on hunger strikes there. President George Bush's Council on Bioethics described force-feeding as “violent and brutal” and as “torture.” This chapter considers whether Americans need the blessing of lawyers and the participation of physicians to justify the force-feeding of hunger strikers in Guantanamo. It also explores the medical ethics of force-feeding, along with the Supreme Court's 2006 ruling in Hamdan v. Rumsfeld that the Geneva Conventions have full force in Guantanamo as a matter of both U.S. and international law. Finally, it stresses the role of physicians, lawyers, and military officers in preventing torture and cruel and inhuman treatment.

Counterterrorism consists of four “legs”: the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorism operations reflect a confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. In a spectrum-predicated analysis, coercive interrogation is the most appropriate, effective, and legal interrogation regime. It is neither torture nor the traditional interrogation regime. It represents a balanced approach that is fully implemented in conjunction with the hybrid paradigm. The hybrid model comprised of melding aspects from both the criminal law and POW paradigms and applying it to the current detainees, based on a historical analogy, provides a unique opportunity to formulate concrete policy recommendations—rooted in the law—to decision makers regarding interrogation. This chapter provides twelve concrete recommendations for all branches of the US government.