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Notes
Those players do often speak, however, through someone else telling her what was said in a particular meeting, since a number of the most ardent advocates of the administration policies did not grant her interviews.
Memos subsequently released by the Obama administration provide a crucial supplement to that volume.
Mayer recounts, for instance, how Vice President Cheney traveled with a gas mask and biochemical survival suit (5).
Locke (1988), II:3:16.
Following 50 years of military precedent, the commander of coalition forces, Tommy Franks, had ordered Article 5 status hearings to screen Taliban and Al Qaeda captives and the State Department and Colin Powell were similarly predisposed. However, on January 18th, Secretary of Defense Rumsfeld sent a letter to the Joint Chiefs rescinding the Franks order and the Vice President’s Counsel David Addington authored a memo, presented to the President under the signature of White House Counsel Alberto Gonzalez, arguing that the Geneva Conventions ought not apply to people captured in Afghanistan. The President’s memo was understood to be a compromise between these positions (124–5).
The Rasul case involved detainees from a number of foreign countries, including citizens of Britain and Australia, and led to the Supreme Court ruling that federal courts have jurisdiction in Guantanamo.
The newly added Roberts recused himself because he had sided with the government, below.
The Hamdan case concerned Salim Ahmed Hamdan, a Yemeni citizen and driver for Osama Bin Laden, and led to the Supreme Court’s determination that the Military Commissions established by Congress violated the Uniform Code of Military Justice and the Geneva Conventions.
Since the power to establish Courts is one that the Constitution reserves for the Congress, the majority ruled that whatever courts and procedures the President establishes that are not in accordance with the Uniform Code of Military Justice (UCMJ), the Geneva Conventions, the Constitution or the federal code, “must be tailored to the exigency that necessitates it” (581).
Mayer’s first chapter wades into the murky waters of the pre-September 11 intelligence failures and suggests that the problems were both less dramatic and, in another sense, more frustrating than is usually understood. The FBI and CIA had sufficient information to prevent September 11th, but the failure to put together the specifics of the plot may have come down to mislabeling information and failing to follow proper procedures (15–17).
This proposition was based on the discovery of the “Manchester Manual,” a terrorist guidebook that “outlined instructions for resistance after capture, including false claims of abuse and torture” (192). Also influential in this regard were certain portions of a 1973 study of Arab culture by Raphael Patai, called The Arab Mind (168). Indeed, a new edition of the book (2007) includes a forward by the Director of Middle East Studies at the JFK Special Warfare Center at Fort Bragg, N.C.
Those who raised questions or resisted include CIA officers (277), CIA lawyers (285), a least one NSA lawyer (291), the government’s own task force known as the Iraq Survey Group (245), JAGs (232), Department of Justice lawyers (289–91), numerous officials at the State Department (122, 297), individuals such as Lieutenant General John Kimmons (326), Deputy Attorney General James Comey (309–310), and Jack Goldsmith and Dan Levin as successive heads of the Department of Justice’s Office of Legal Counsel (307, 309–310). All the while, from outside the bureaucracy, the administration was getting warnings from our closest allies about the treatment of terrorists (30, 275); alarms were being set off by human rights organizations and the Red Cross (315, 333–4, 275), and, most directly, the policies were being challenged by the work of attorneys who took up the detainee cases (300). There was also the resistance of the detainees themselves who took to hunger strikes and suicide (274, 282, 285).
The other four members were John Yoo at the Department of Justice’s Office of the Legal Counsel, White House Deputy Counsel Timothy Flanigan, White House Counsel Alberto Gonzalez, and General Counsel at the Pentagon, Jim Haynes.
See Baker and Shane (2009).
The program was initiated in response to the false confessions elicited from US airmen during the Korean War.
The memos released by the Obama administration confirm that some high value detainees were subject to the sort of devastation Mayer suspects (Shane 2009).
Mayer incorrectly calls it Mandate for Change, which was the Progressive Policy Institute’s riposte to Mandate for Leadership.
The manuals were destroyed when they were revealed to the public, but seven copies were given by Cheney to David Addington when they were at the Department of Defense and he kept them in his safe.
Mayer reports that the top military lawyer in Guantanamo, Diane Beaver said that “Jack Bauer ‘gave people lots of ideas’” although the show was written by someone with no military or intelligence experience.
Mayer also notes two interesting potential sources for justifying such techniques: North Vietnamese arguments that American soldiers were “pirates” not covered by the Geneva conventions (121), and arguments against protecting anti-Israeli terrorists with the Geneva conventions (122).
Augustine (1972), XIX: 7.
Montesquieu (2002), VI: 17.
Locke (1988), II:8.
Montesquieu (2002), XII: 2.
The government’s motion to dismiss Rasul states: “Petitioners here seek to invoke this Court in the conduct of the war, immediately on the heels of their capture, while the fighting continues and before any military trials have been conducted” (31) and “the civilian courts of this Nation cannot be a forum for second-guessing the sensitive military and foreign-affairs decisions challenged by petitioners without undermining the President’s ability to conduct the war on terrorism” (33). Thomas’s dissent in Hamdan affirms the principle, arguing that “[t]he judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority …” (622).
The government’s Motion to Dismiss in Hamdi points out that the petitioners are wrong to suggest that Hamdi’s detention is illegal because “a significant number, if not the vast majority, of those seized in war are never charged with any offense but instead are simply detained during the conflict” (218).
The government was particularly apt to use this argument in Hamdi, where the District Court Judge, Robert G. Doumar, impugned the government for providing only the two page “Mobbs Declaration” (227–228) as proof that Hamdi was an enemy combatant.
Quoting Eisentrager, Scalia reminds the majority in Rasul that “‘It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to enemies of the United States’” (106).
For instance, the Court upheld President’s Roosevelt’s use of military commissions to try a group of German saboteurs on American soil in Ex parte Quirin and the trial of German nationals arrested by US Forces in China in Johnson v. Eisentrager.
As the government’s motion to dismiss in Hamdi states: “With respect to when the conflict will end, the key point is that there is no dispute that the United States is presently engaged in active hostilities. As a result, even if cessation of hostilities and the continued need to detain enemy combatants were matters for judicial inquiry, the concern that hostilities might persist indefinitely is clearly premature here” (335).
Hamdi v. Rumsfeld concerned an American citizen being held incommunicado at the Naval Brig in Norfolk, Virginia. When the federal Public Defender Frank Dunham sought access to Mr. Hamdi, the government argued that he could not represent him because, “as underscored by his request for access, he has never met the detainee or communicated with him in any way” (188). Indeed, it was “undisputed that the detainee himself is not ‘seeking relief’ from this Court” (189).
Early on in Rasul, the government claimed that the petition ought to be dismissed because the President had not actually designated any particular detainees in Guantanamo as subject to the Military Order for dealing with detainees in the war on terror. The detainees were also not prisoners of war because they might be illegal combatants. They were, from the standpoint of law, nothing yet and therefore there was no standing for the complaint (23, 26).
When Hamdan’s government-appointed attorney, JAG Lt. Commander Charles Swift, argued that Hamdan’s 2-year detention clearly violated the Uniform Code of Military Justice requirement that trials proceed with “reasonable diligence,” the government replied that UCMJ’s Article 10 clock does not begin unless a detainee is “‘ordered into arrest or confinement’ pursuant to a charge” (442). Since he was not charged with anything until he was placed in Camp Echo, most of his detention was not relevant to the law.
Bradbury (2005), 18.
In particular, the current campaign against a “savage enemy” requires “gathering reliable intelligence” (197).
On juridical personhood, see Arendt (1973), 447.
Hobbes (1994), XIX:3; see also XXI.
Boumediene involved the case of a national of Bosnia–Herzegovia held in Guantanamo. The petitioners challenged his detention and the legality of the Military Commissions Act. Unfortunately, the book went to press just after the Supreme Court decision was handed down, so only a portion of it is excerpted at the end of The Enemy Combatant Papers, and none of the preceding briefs are included.
Montesquieu (2002), XII:9–10.
Machiavelli ([1970] 2003), I: 6.
See Harris et al. (2009).
See footnote 12.
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The author would like to thank Alec Ewald, Rachel Hall, Wayne Parent, and Laura Moyer.
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Howes, D.E. Conservative Democratic Thought and the War on Terror. Hum Rights Rev 11, 135–149 (2010). https://doi.org/10.1007/s12142-009-0136-0
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DOI: https://doi.org/10.1007/s12142-009-0136-0