Moeckli Daniel
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199239801
- eISBN:
- 9780191716829
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239801.003.0005
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter discusses the trial of alleged terrorists by special tribunals. It demonstrates that the right to equality before the courts — one of the most important aspects of the right to ...
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This chapter discusses the trial of alleged terrorists by special tribunals. It demonstrates that the right to equality before the courts — one of the most important aspects of the right to non-discrimination — protects foreign defendants from being treated differently on the basis of their nationality both in times of peace and armed conflict. The establishment of special tribunals that only have jurisdiction to try foreign terrorist suspects could therefore only be regarded as justified if it was supported by compelling reasons. Yet it is impossible to discern objective and reasonable grounds for subjecting foreign, but not domestic, terrorist suspects to a special trial system. Rather than being a suitable, and thus proportionate, means of protecting national security, the one-sided focus of such tribunal systems is motivated by political considerations and may have serious negative impacts on the legitimacy, and thus the effectiveness of anti-terrorism efforts.Less
This chapter discusses the trial of alleged terrorists by special tribunals. It demonstrates that the right to equality before the courts — one of the most important aspects of the right to non-discrimination — protects foreign defendants from being treated differently on the basis of their nationality both in times of peace and armed conflict. The establishment of special tribunals that only have jurisdiction to try foreign terrorist suspects could therefore only be regarded as justified if it was supported by compelling reasons. Yet it is impossible to discern objective and reasonable grounds for subjecting foreign, but not domestic, terrorist suspects to a special trial system. Rather than being a suitable, and thus proportionate, means of protecting national security, the one-sided focus of such tribunal systems is motivated by political considerations and may have serious negative impacts on the legitimacy, and thus the effectiveness of anti-terrorism efforts.
Amos N. Guiora
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195340310
- eISBN:
- 9780199867226
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195340310.003.0002
- Subject:
- Law, Human Rights and Immigration, Constitutional and Administrative Law
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 ...
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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.Less
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.
A. Naomi Paik
- Published in print:
- 2016
- Published Online:
- September 2016
- ISBN:
- 9781469626314
- eISBN:
- 9781469628097
- Item type:
- chapter
- Publisher:
- University of North Carolina Press
- DOI:
- 10.5149/northcarolina/9781469626314.003.0006
- Subject:
- History, American History: 20th Century
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 ...
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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.Less
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.
Stephen I. Vladeck
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199671144
- eISBN:
- 9780191751516
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199671144.003.0009
- Subject:
- Law, Public International Law, Legal History
This chapter examines the Supreme Court's 1950 ruling in Johnson v Eisentrager, where twenty-seven German nationals captured in China were tried by a US military commission for war crimes based on ...
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This chapter examines the Supreme Court's 1950 ruling in Johnson v Eisentrager, where twenty-seven German nationals captured in China were tried by a US military commission for war crimes based on their continuing support of the Japanese military after Germany's surrender on 8 May 1945. Twenty-one of the defendants were convicted and sentenced to prison terms ranging from five years' to life imprisonment. After being transferred back to Germany to serve their sentences, the twenty-one convicted defendants sought habeas relief in the US courts; their claims were ultimately rejected by the Supreme Court by a six to three vote. The chapter analyses how the Supreme Court reached that decision.Less
This chapter examines the Supreme Court's 1950 ruling in Johnson v Eisentrager, where twenty-seven German nationals captured in China were tried by a US military commission for war crimes based on their continuing support of the Japanese military after Germany's surrender on 8 May 1945. Twenty-one of the defendants were convicted and sentenced to prison terms ranging from five years' to life imprisonment. After being transferred back to Germany to serve their sentences, the twenty-one convicted defendants sought habeas relief in the US courts; their claims were ultimately rejected by the Supreme Court by a six to three vote. The chapter analyses how the Supreme Court reached that decision.
Dru Brenner-Beck
- Published in print:
- 2015
- Published Online:
- December 2014
- ISBN:
- 9780199941452
- eISBN:
- 9780190221393
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199941452.003.0006
- Subject:
- Law, Public International Law, Human Rights and Immigration
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 ...
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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.Less
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.
Semion Lyandres
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199235759
- eISBN:
- 9780191745898
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199235759.003.0004
- Subject:
- History, European Modern History, Political History
This chapter presents a translation of the Russian-language transcripts of the interview with Aleksandr Aleksandrovich Chikolini (1872–?), a Moscow sworn attorney before WWI, and a noncommissioned ...
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This chapter presents a translation of the Russian-language transcripts of the interview with Aleksandr Aleksandrovich Chikolini (1872–?), a Moscow sworn attorney before WWI, and a noncommissioned officer in the infantry reserves during 1914–1917. At the time of the February Revolution, his unit was deployed in the capital, patrolling parts of the city center. On 27 February 1917, he was among the first to join the powerful Military Commission and thus belonged to the small core group of military officers and civilians who led the effort to organize anti-government forces and to capture key military and government installations. This interview remains Chikolini's only recorded testimony. It offers a rare insider's account of the Military Commission's structure, composition, and its multitude of tasks by an intelligent, perceptive, well-informed participant with no particular political affiliation. Chikolini emphasizes the Military Commission's unparalleled contribution to the overthrow of the old regime.Less
This chapter presents a translation of the Russian-language transcripts of the interview with Aleksandr Aleksandrovich Chikolini (1872–?), a Moscow sworn attorney before WWI, and a noncommissioned officer in the infantry reserves during 1914–1917. At the time of the February Revolution, his unit was deployed in the capital, patrolling parts of the city center. On 27 February 1917, he was among the first to join the powerful Military Commission and thus belonged to the small core group of military officers and civilians who led the effort to organize anti-government forces and to capture key military and government installations. This interview remains Chikolini's only recorded testimony. It offers a rare insider's account of the Military Commission's structure, composition, and its multitude of tasks by an intelligent, perceptive, well-informed participant with no particular political affiliation. Chikolini emphasizes the Military Commission's unparalleled contribution to the overthrow of the old regime.
Butterwick Richard
- Published in print:
- 1993
- Published Online:
- October 2011
- ISBN:
- 9780198207016
- eISBN:
- 9780191677441
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198207016.003.0008
- Subject:
- History, European Modern History
The English constitution had a minor influence on the constitutional reforms that the Czartoryskis and Stanislaw August enacted. The model for the treasury and military commissions was probably the ...
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The English constitution had a minor influence on the constitutional reforms that the Czartoryskis and Stanislaw August enacted. The model for the treasury and military commissions was probably the colleges functioning in many European states. Most of the other reforms were straightforward repairs of obvious deficiencies, which required no foreign example. Whatever mistakes he can be accused of making in the first years of his reign, Stanislaw August did not become a putative absolutist. He remained faithful to the English constitution model. The violent reaction in 1767–72 against Stanislaw August, the Czartoryskis, and their reforms showed that fundamental constitutional reform was not only blocked by Russia. The mentality of the szlachta would have to be transformed before the nation could work out an effective form of government for itself. The Russian guarantee re-imposed after 1722 allowed that transformation time to take effect.Less
The English constitution had a minor influence on the constitutional reforms that the Czartoryskis and Stanislaw August enacted. The model for the treasury and military commissions was probably the colleges functioning in many European states. Most of the other reforms were straightforward repairs of obvious deficiencies, which required no foreign example. Whatever mistakes he can be accused of making in the first years of his reign, Stanislaw August did not become a putative absolutist. He remained faithful to the English constitution model. The violent reaction in 1767–72 against Stanislaw August, the Czartoryskis, and their reforms showed that fundamental constitutional reform was not only blocked by Russia. The mentality of the szlachta would have to be transformed before the nation could work out an effective form of government for itself. The Russian guarantee re-imposed after 1722 allowed that transformation time to take effect.
Ralph Jason
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199652358
- eISBN:
- 9780191745515
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652358.003.0003
- Subject:
- Political Science, International Relations and Politics
This chapter focuses on the use of military commissions to prosecute terrorist suspects. This is interpreted as an extension of the Bush administration’s focus on prevention and a concern that ...
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This chapter focuses on the use of military commissions to prosecute terrorist suspects. This is interpreted as an extension of the Bush administration’s focus on prevention and a concern that federal courts were inappropriate for terrorists that were designated ‘enemy combatants’. The chapter introduces the debate over the applicability of the Geneva Conventions and the argument that as ‘unlawful combatants’ the enemy could be prosecuted for taking up arms against US forces. The continuity theme is illustrated with a discussion of President Obama’s use of reformed military commissions. While change is evident to the extent new incidents were treated as law enforcement issues, Obama found it too difficult politically to transfer high profile 9/11 detainees to federal courts.Less
This chapter focuses on the use of military commissions to prosecute terrorist suspects. This is interpreted as an extension of the Bush administration’s focus on prevention and a concern that federal courts were inappropriate for terrorists that were designated ‘enemy combatants’. The chapter introduces the debate over the applicability of the Geneva Conventions and the argument that as ‘unlawful combatants’ the enemy could be prosecuted for taking up arms against US forces. The continuity theme is illustrated with a discussion of President Obama’s use of reformed military commissions. While change is evident to the extent new incidents were treated as law enforcement issues, Obama found it too difficult politically to transfer high profile 9/11 detainees to federal courts.
James P. Pfiffner
- Published in print:
- 2009
- Published Online:
- September 2012
- ISBN:
- 9780748627400
- eISBN:
- 9780748671946
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748627400.003.0003
- Subject:
- Political Science, American Politics
President George W. Bush was willing to delegate large swaths of public policy to Vice President Dick Cheney. This chapter examines several cases of policy decisions that illustrate Bush's ...
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President George W. Bush was willing to delegate large swaths of public policy to Vice President Dick Cheney. This chapter examines several cases of policy decisions that illustrate Bush's unwillingness to subject his policy preferences to expert scrutiny. It also considers his order that created military commissions to prosecute suspected terrorists in November 2001 and his decision to disband the Iraqi army in May 2000. Moreover, it demonstrates Bush's penchant to ignore or to dismiss the judgement of professionals in the executive branch by focusing on his decision to suspend the Geneva Conventions in the war on terror and his insistence that Saddam Hussein was connected to al-Qaeda and 9/11, despite CIA evidence to the contrary. Finally, it illustrates his broad assertions of presidential power with his order to the National Security Agency to conduct surveillance on Americans, without the warrants required by law, and his unprecedented use of signing statements. Most of these policy decisions were made and carried out through Cheney's mastery of the levers of power within the executive branch of the United States government.Less
President George W. Bush was willing to delegate large swaths of public policy to Vice President Dick Cheney. This chapter examines several cases of policy decisions that illustrate Bush's unwillingness to subject his policy preferences to expert scrutiny. It also considers his order that created military commissions to prosecute suspected terrorists in November 2001 and his decision to disband the Iraqi army in May 2000. Moreover, it demonstrates Bush's penchant to ignore or to dismiss the judgement of professionals in the executive branch by focusing on his decision to suspend the Geneva Conventions in the war on terror and his insistence that Saddam Hussein was connected to al-Qaeda and 9/11, despite CIA evidence to the contrary. Finally, it illustrates his broad assertions of presidential power with his order to the National Security Agency to conduct surveillance on Americans, without the warrants required by law, and his unprecedented use of signing statements. Most of these policy decisions were made and carried out through Cheney's mastery of the levers of power within the executive branch of the United States government.
Jason Ralph
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199652358
- eISBN:
- 9780191745515
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652358.001.0001
- Subject:
- Political Science, International Relations and Politics
Following 9/11 the United States faced a situation of exceptional insecurity. In that period the Bush administration argued that certain international norms did not apply to US conduct. Its argument ...
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Following 9/11 the United States faced a situation of exceptional insecurity. In that period the Bush administration argued that certain international norms did not apply to US conduct. Its argument was underpinned by the claim that the United States was in a state of armed conflict or ‘war’ with ‘a new kind of enemy’. The purpose of this book is to examine whether this approach outlasted the moment of insecurity that gave rise to it. More than a decade on from those attacks, and following a change of administration, what influence do these arguments have on American policy? To answer this question it focuses on four areas of policy: the use of force and the prosecution, detention and interrogation of suspected terrorists. It demonstrates how the Bush policy programme was contested by liberals and realists from the outset. Any expectation that the war on terror would end following the election of President Obama has, however, proven unfounded. Obama consolidated the liberal pushback against aspects of the Bush programme but the US has continued to argue a state of armed conflict exists. The scope of the battlefield and the definition of the enemy has been a source of intense debate but the fact that the Guant00E1namo Bay detention facility remained open long after the President promised to close it is indicative of the underlying continuity. It is argued that this is driven in part by domestic politics and in part by an understanding of how the terrorist threat is evolving.Less
Following 9/11 the United States faced a situation of exceptional insecurity. In that period the Bush administration argued that certain international norms did not apply to US conduct. Its argument was underpinned by the claim that the United States was in a state of armed conflict or ‘war’ with ‘a new kind of enemy’. The purpose of this book is to examine whether this approach outlasted the moment of insecurity that gave rise to it. More than a decade on from those attacks, and following a change of administration, what influence do these arguments have on American policy? To answer this question it focuses on four areas of policy: the use of force and the prosecution, detention and interrogation of suspected terrorists. It demonstrates how the Bush policy programme was contested by liberals and realists from the outset. Any expectation that the war on terror would end following the election of President Obama has, however, proven unfounded. Obama consolidated the liberal pushback against aspects of the Bush programme but the US has continued to argue a state of armed conflict exists. The scope of the battlefield and the definition of the enemy has been a source of intense debate but the fact that the Guant00E1namo Bay detention facility remained open long after the President promised to close it is indicative of the underlying continuity. It is argued that this is driven in part by domestic politics and in part by an understanding of how the terrorist threat is evolving.
Curtis A. Bradley
- Published in print:
- 2015
- Published Online:
- April 2015
- ISBN:
- 9780190217761
- eISBN:
- 9780190217808
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190217761.003.0010
- Subject:
- Law, Private International Law, Comparative Law
This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war. After briefly reviewing some of the most relevant treaties ...
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This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war. After briefly reviewing some of the most relevant treaties relating to war and warfare, the chapter considers the Constitution’s distribution of war authority between Congress and the President. It then discusses how international law, including the provisions in the UN Charter relating to the authority of the Security Council, as well as collective self-defense treaties, might affect the President’s war authority. The chapter then shifts to the “war on terrorism” and discusses the relevance of international law, including the Geneva Conventions, to issues concerning the scope of the military’s detention authority in that conflict, with particular reference to the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. International law and other issues relating to the use of military commissions to try terrorist suspects are also considered. The chapter concludes by discussing legal debates relating to coercive interrogation and targeted killing.Less
This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war. After briefly reviewing some of the most relevant treaties relating to war and warfare, the chapter considers the Constitution’s distribution of war authority between Congress and the President. It then discusses how international law, including the provisions in the UN Charter relating to the authority of the Security Council, as well as collective self-defense treaties, might affect the President’s war authority. The chapter then shifts to the “war on terrorism” and discusses the relevance of international law, including the Geneva Conventions, to issues concerning the scope of the military’s detention authority in that conflict, with particular reference to the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. International law and other issues relating to the use of military commissions to try terrorist suspects are also considered. The chapter concludes by discussing legal debates relating to coercive interrogation and targeted killing.
Harry N. Scheiber and Jane L. Scheiber
- Published in print:
- 2016
- Published Online:
- November 2016
- ISBN:
- 9780824852887
- eISBN:
- 9780824868727
- Item type:
- chapter
- Publisher:
- University of Hawai'i Press
- DOI:
- 10.21313/hawaii/9780824852887.003.0007
- Subject:
- Society and Culture, Pacific Studies
The administration of justice was a source of major contention between the civil authorities and the military. The Military Governor closed the civil courts, whose functions were replaced with ...
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The administration of justice was a source of major contention between the civil authorities and the military. The Military Governor closed the civil courts, whose functions were replaced with military commissions for serious crimes and provost courts for more minor crimes and violations of the General Orders, including absenteeism. Although the civil courts were allowed to reopen in January 1942 “as agents of the Military Governor,” their jurisdiction was limited to civil matters; habeas corpus remained suspended, and there were no jury trials. Only eight cases were tried by military commissions. Two were especially significant: that of Otto Kuehn, who became the only individual convicted of spying; and that of Saffery Brown, a part-Hawaiian laborer whose conviction for murder did much to mobilize civil libertarians against army justice. Of far greater impact on the civilian population were the more than 55,000 trials in the provost courts, with a single officer presiding (often without legal training), no regard for due process, no juries, no distinctions between juveniles and adults, and a conviction rate of close to 100 percent. Trials lasted only a few minutes each and sentences were harsh. These trials were among the most egregious features of martial law.Less
The administration of justice was a source of major contention between the civil authorities and the military. The Military Governor closed the civil courts, whose functions were replaced with military commissions for serious crimes and provost courts for more minor crimes and violations of the General Orders, including absenteeism. Although the civil courts were allowed to reopen in January 1942 “as agents of the Military Governor,” their jurisdiction was limited to civil matters; habeas corpus remained suspended, and there were no jury trials. Only eight cases were tried by military commissions. Two were especially significant: that of Otto Kuehn, who became the only individual convicted of spying; and that of Saffery Brown, a part-Hawaiian laborer whose conviction for murder did much to mobilize civil libertarians against army justice. Of far greater impact on the civilian population were the more than 55,000 trials in the provost courts, with a single officer presiding (often without legal training), no regard for due process, no juries, no distinctions between juveniles and adults, and a conviction rate of close to 100 percent. Trials lasted only a few minutes each and sentences were harsh. These trials were among the most egregious features of martial law.
Jonathan Hafetz
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814737033
- eISBN:
- 9780814790793
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814737033.003.0013
- Subject:
- Law, Criminal Law and Criminology
This chapter examines questions that a habeas corpus petition can ask but that the law of habeas itself does not answer—questions that are at the core of current debates about America's detention ...
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This chapter examines questions that a habeas corpus petition can ask but that the law of habeas itself does not answer—questions that are at the core of current debates about America's detention policy. These questions include whether suspected terrorists can be subjected to indefinite military detention and/or prosecuted before military commissions, or whether they instead should be charged and tried in the regular federal courts. While habeas corpus provides the opportunity for meaningful judicial review of executive action, the chapter argues that the mere availability of that review does not by itself resolve the underlying legal and constitutional questions surrounding the scope of the executive's legal authority to detain in counterterrorism operations or to hold individuals without criminal trial in the regular federal courts. It calls for a return to the long-standing practice of prosecuting suspected terrorists in civilian courts in place of indefinite military detention, military commissions, and hybrid proposals such as national security courts.Less
This chapter examines questions that a habeas corpus petition can ask but that the law of habeas itself does not answer—questions that are at the core of current debates about America's detention policy. These questions include whether suspected terrorists can be subjected to indefinite military detention and/or prosecuted before military commissions, or whether they instead should be charged and tried in the regular federal courts. While habeas corpus provides the opportunity for meaningful judicial review of executive action, the chapter argues that the mere availability of that review does not by itself resolve the underlying legal and constitutional questions surrounding the scope of the executive's legal authority to detain in counterterrorism operations or to hold individuals without criminal trial in the regular federal courts. It calls for a return to the long-standing practice of prosecuting suspected terrorists in civilian courts in place of indefinite military detention, military commissions, and hybrid proposals such as national security courts.
Jonathan Hafetz
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814737033
- eISBN:
- 9780814790793
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814737033.003.0013
- Subject:
- Law, Criminal Law and Criminology
This chapter examines questions that a habeas corpus petition can ask but that the law of habeas itself does not answer—questions that are at the core of current debates about America's detention ...
More
This chapter examines questions that a habeas corpus petition can ask but that the law of habeas itself does not answer—questions that are at the core of current debates about America's detention policy. These questions include whether suspected terrorists can be subjected to indefinite military detention and/or prosecuted before military commissions, or whether they instead should be charged and tried in the regular federal courts. While habeas corpus provides the opportunity for meaningful judicial review of executive action, the chapter argues that the mere availability of that review does not by itself resolve the underlying legal and constitutional questions surrounding the scope of the executive's legal authority to detain in counterterrorism operations or to hold individuals without criminal trial in the regular federal courts. It calls for a return to the long-standing practice of prosecuting suspected terrorists in civilian courts in place of indefinite military detention, military commissions, and hybrid proposals such as national security courts.
Less
This chapter examines questions that a habeas corpus petition can ask but that the law of habeas itself does not answer—questions that are at the core of current debates about America's detention policy. These questions include whether suspected terrorists can be subjected to indefinite military detention and/or prosecuted before military commissions, or whether they instead should be charged and tried in the regular federal courts. While habeas corpus provides the opportunity for meaningful judicial review of executive action, the chapter argues that the mere availability of that review does not by itself resolve the underlying legal and constitutional questions surrounding the scope of the executive's legal authority to detain in counterterrorism operations or to hold individuals without criminal trial in the regular federal courts. It calls for a return to the long-standing practice of prosecuting suspected terrorists in civilian courts in place of indefinite military detention, military commissions, and hybrid proposals such as national security courts.
Semion Lyandres
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199235759
- eISBN:
- 9780191745898
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199235759.001.0001
- Subject:
- History, European Modern History, Political History
The Russian Revolution of February 1917 was a defining event of the twentieth-century. In nine short days, the centuries-old tsarist regime was overthrown and a chain of events was set in motion that ...
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The Russian Revolution of February 1917 was a defining event of the twentieth-century. In nine short days, the centuries-old tsarist regime was overthrown and a chain of events was set in motion that led to the disintegration of the Russian empire and the rise of the Soviet regime. Yet even today, as we approach the centennial of the February Revolution—and twenty years after the opening of the previously inaccessible Russian archives—historians still lack firsthand contemporary accounts of what happened during those nine fateful days. This book presents for the first time the earliest known oral histories (interviews) of the February Revolution as told by ten of its leading participants shortly after the events, at a time when the outcome of the revolution was far from certain. The story of the interviews, which remained in private hands between 1917 and 2006, is presented in the introductory chapters. Each interview is prefaced by an introduction that includes a biographical note on the interviewee and the specific circumstances and significance of the interview, with textual and contextual annotations, placing this unique documentary collection in its wider historical context. The interviews are particularly useful in illuminating the role of the Duma Military Commission in neutralizing and defeating the forces of the old regime, the origins of the Petrograd Soviet, and the nature and workings of the so-called dual power arrangement between the Duma Committee and the Petrograd Soviet during the first days of the revolution. The book closes with an interpretive chapter that discusses the historical significance of the interviews and their broad implications for our understanding of the February Revolution.Less
The Russian Revolution of February 1917 was a defining event of the twentieth-century. In nine short days, the centuries-old tsarist regime was overthrown and a chain of events was set in motion that led to the disintegration of the Russian empire and the rise of the Soviet regime. Yet even today, as we approach the centennial of the February Revolution—and twenty years after the opening of the previously inaccessible Russian archives—historians still lack firsthand contemporary accounts of what happened during those nine fateful days. This book presents for the first time the earliest known oral histories (interviews) of the February Revolution as told by ten of its leading participants shortly after the events, at a time when the outcome of the revolution was far from certain. The story of the interviews, which remained in private hands between 1917 and 2006, is presented in the introductory chapters. Each interview is prefaced by an introduction that includes a biographical note on the interviewee and the specific circumstances and significance of the interview, with textual and contextual annotations, placing this unique documentary collection in its wider historical context. The interviews are particularly useful in illuminating the role of the Duma Military Commission in neutralizing and defeating the forces of the old regime, the origins of the Petrograd Soviet, and the nature and workings of the so-called dual power arrangement between the Duma Committee and the Petrograd Soviet during the first days of the revolution. The book closes with an interpretive chapter that discusses the historical significance of the interviews and their broad implications for our understanding of the February Revolution.
Rebecca Sanders
- Published in print:
- 2018
- Published Online:
- August 2018
- ISBN:
- 9780190870553
- eISBN:
- 9780190870584
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190870553.003.0004
- Subject:
- Political Science, International Relations and Politics, American Politics
Post-9/11 American counterterrorism policy has strained legal prohibitions on arbitrary deprivations of life and liberty. This chapter surveys domestic and international legal norms governing killing ...
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Post-9/11 American counterterrorism policy has strained legal prohibitions on arbitrary deprivations of life and liberty. This chapter surveys domestic and international legal norms governing killing and detention in peace and war and traces how Americans have justified breaking these rules over time. In cultures of exception, authorities invoked wartime necessity as well as explicitly racist logics to kill, deport, intern, and violate the due process rights of people deemed dangerous. During the Cold War, the United States secretly colluded with allied regimes to disappear dissidents. In the global war on terror, policymakers sought to legally rationalize immigration roundups, watch lists, indefinite imprisonment at Guantánamo Bay and elsewhere, military commissions, and targeted killing in reference to extant norms. Lawyers exploited loopholes and gaps in the law in order to claim that unlawful enemy combatants are subject to wartime detention, trial, and lethal targeting but do not enjoy the rights of lawful combatants.Less
Post-9/11 American counterterrorism policy has strained legal prohibitions on arbitrary deprivations of life and liberty. This chapter surveys domestic and international legal norms governing killing and detention in peace and war and traces how Americans have justified breaking these rules over time. In cultures of exception, authorities invoked wartime necessity as well as explicitly racist logics to kill, deport, intern, and violate the due process rights of people deemed dangerous. During the Cold War, the United States secretly colluded with allied regimes to disappear dissidents. In the global war on terror, policymakers sought to legally rationalize immigration roundups, watch lists, indefinite imprisonment at Guantánamo Bay and elsewhere, military commissions, and targeted killing in reference to extant norms. Lawyers exploited loopholes and gaps in the law in order to claim that unlawful enemy combatants are subject to wartime detention, trial, and lethal targeting but do not enjoy the rights of lawful combatants.
Peter Weiss
- Published in print:
- 2007
- Published Online:
- September 2009
- ISBN:
- 9780195325256
- eISBN:
- 9780199864409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195325256.003.0019
- Subject:
- Public Health and Epidemiology, Public Health, Epidemiology
This chapter discusses the promotion of international law as a means of addressing terrorism. It describes responses of the U.S. government to the 9/11 attacks and how these responses have often been ...
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This chapter discusses the promotion of international law as a means of addressing terrorism. It describes responses of the U.S. government to the 9/11 attacks and how these responses have often been in violation of international law.Less
This chapter discusses the promotion of international law as a means of addressing terrorism. It describes responses of the U.S. government to the 9/11 attacks and how these responses have often been in violation of international law.
Jonathan Hafetz
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814737033
- eISBN:
- 9780814790793
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814737033.003.0010
- Subject:
- Law, Criminal Law and Criminology
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, ...
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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.Less
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.
Geoffrey S. Corn, James A. Schoettler, Jr., Dru Brenner-Beck, Victor M. Hansen, Dick Jackson, Eric Talbot Jensen, and Michael W. Lewis
- Published in print:
- 2015
- Published Online:
- December 2014
- ISBN:
- 9780199941452
- eISBN:
- 9780190221393
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199941452.001.0001
- Subject:
- Law, Public International Law, Human Rights and Immigration
Thirteen years after the United States initiated a military response to the terrorist attacks of September 11, 2001, the nation continues to prosecute what it considers an armed conflict against ...
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Thirteen years after the United States initiated a military response to the terrorist attacks of September 11, 2001, the nation continues to prosecute what it considers an armed conflict against transnational terrorist groups. Understanding how the law of armed conflict applies to and regulates military operations executed within the scope of this armed conflict against transnational nonstate terrorist groups is as important today as it was in September 2001. This is because the core purpose of this branch of international law (what was historically known as the law of war) is to strike an effective balance between the necessity of using armed violence to subdue a threat to the nation with the humanitarian interest of mitigating the suffering inevitably associated with that use. How this core purpose of the law of armed conflict has influenced operational decisions related to all aspects of the military response to al-Qaeda and associated forces is the focus of this book. Each chapter will address a specific operational issue, including the national right of self-defense, military targeting and the use of drones, detention, interrogation, and trial by military commission of captured terrorist operatives, and the impact of battlefield perspectives on counter-terror military operations and illustrate how the law of armed conflict influences resolution of that issue. Some chapters will go further. All will reinforce the essential link between respect for the law and strategic legitimacy, perhaps the most enduring lesson from this on-going national challenge.Less
Thirteen years after the United States initiated a military response to the terrorist attacks of September 11, 2001, the nation continues to prosecute what it considers an armed conflict against transnational terrorist groups. Understanding how the law of armed conflict applies to and regulates military operations executed within the scope of this armed conflict against transnational nonstate terrorist groups is as important today as it was in September 2001. This is because the core purpose of this branch of international law (what was historically known as the law of war) is to strike an effective balance between the necessity of using armed violence to subdue a threat to the nation with the humanitarian interest of mitigating the suffering inevitably associated with that use. How this core purpose of the law of armed conflict has influenced operational decisions related to all aspects of the military response to al-Qaeda and associated forces is the focus of this book. Each chapter will address a specific operational issue, including the national right of self-defense, military targeting and the use of drones, detention, interrogation, and trial by military commission of captured terrorist operatives, and the impact of battlefield perspectives on counter-terror military operations and illustrate how the law of armed conflict influences resolution of that issue. Some chapters will go further. All will reinforce the essential link between respect for the law and strategic legitimacy, perhaps the most enduring lesson from this on-going national challenge.
Jonathan Hafetz
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814737033
- eISBN:
- 9780814790793
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814737033.003.0006
- Subject:
- Law, Criminal Law and Criminology
This chapter examines how habeas corpus emerged as a legal instrument for protecting individuals against unlawful imprisonment by the executive. It also considers the role of habeas during wartime; ...
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This chapter examines how habeas corpus emerged as a legal instrument for protecting individuals against unlawful imprisonment by the executive. It also considers the role of habeas during wartime; its resilience as a mechanism of securing judicial review; how it helps police the line between civilian and military authority as well as prevent arbitrary government action; repeated efforts by government officials to circumvent habeas corpus in cases such as detention of alleged terrorists indefinitely as “enemy combatants”; and the application of habeas corpus as a means for reviewing decisions by military commissions that try enemy soldiers for war crimes. Finally, it discusses how the courts have addressed the issue surrounding the availability of habeas corpus for prisoners detained and tried outside the sovereign territory of the United States.
Less
This chapter examines how habeas corpus emerged as a legal instrument for protecting individuals against unlawful imprisonment by the executive. It also considers the role of habeas during wartime; its resilience as a mechanism of securing judicial review; how it helps police the line between civilian and military authority as well as prevent arbitrary government action; repeated efforts by government officials to circumvent habeas corpus in cases such as detention of alleged terrorists indefinitely as “enemy combatants”; and the application of habeas corpus as a means for reviewing decisions by military commissions that try enemy soldiers for war crimes. Finally, it discusses how the courts have addressed the issue surrounding the availability of habeas corpus for prisoners detained and tried outside the sovereign territory of the United States.