Abstract
The administration’s intention to transport al Qaeda and Taliban prisoners to Guantanamo Bay was announced on December 27, 2001, by Defense Secretary Donald Rumsfeld. The next day, the memo by John Yoo of the Office of Legal Counsel enabled the administration to create a legal fiction, to place prisoners outside the U.S. court system. The memo prevented prisoners from using habeas corpus and argued that in leasing Guantanamo Bay from Cuba, the United States had jurisdiction and control over the base. Another memo by Yoo and special counsel Robert Delahanty excluded prisoners alleged to be members of al Qaeda and the Taliban from protections of Article 5, which says that captured members of either group have the right to be identified and treated as POWs. It argued that members of these groups cannot be considered POWs because they are terrorists, exhibiting the mindset that only the administration can determine which individuals are members of terrorist organizations. It wasn’t written to enable the capture of actual terrorists; it was designed to apply to anyone in custody, regardless of the evidence.
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Notes
J. Margulies, Guantanamo and the Abuse of Presidential Power (New York: Simon and Schuster, 2006) p. 67.
J. Mayer, The Dark Side: The Inside Story of how the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008) p. 203.
H. Ball, Bush, the Detainees and the Constitution: The Battle over Presidential Power in the War on Terror (Kansas: University of Kansas Press, 2007) p. 179.
M. Cohn, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law (Sausalito: PoliPoint Press, 2007) p. 75.
E. Lichtblau, Bush’s Law: The Remaking of American Justice (New York: Random House, 2008) p. 107.
J. Bamford, The Shadow Factory: The Ultra Secret NSA from 9/11 to the Eavesdropping on America (New York: Doubleday, 2008) p. 113.
C. Savage, Takeover: The Return of the Imperial Presidency (New York: Little Brown, 2008) p. 234.
J. Dean, Worse Than Watergate: The Secret Presidency of George W. Bush (New York: Little Brown, 2004) pp.138—139.
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© 2011 Andrew Kolin
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Kolin, A. (2011). Actions Taken against Enemies of the State. In: State Power and Democracy. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230116382_7
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DOI: https://doi.org/10.1057/9780230116382_7
Publisher Name: Palgrave Macmillan, New York
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