A War Like No Other
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Matthews v. Eldridge, 50–51, 117
Mayer, Jane, 180
McCain, John, 110–11, 118, 179, 184
metadata, collection of, 222
military commissions, xiii, 21–22, 82, 93, 95–96, 98, 100, 107–8, 110, 123, 232, 295n15
authority for the establishment of, 83, 85–91
due process and, 94
enemy combatants and, 107–8
evidentiary rules and, 120
executive branch and, 96
Guantánamo detainees and, 101, 108, 121, 156
Hamdan v. Rumsfeld and, 81–89
institutionalization of, 120–21
jurisdiction of, 108, 272–73
noncitizens and, 112, 121
Obama administration and, 119–21
procedural issues, 84–86
rules of evidence in, 84
structural aspects of, 85–86
transformation from necessity to convenience, 108
trial of Khalid Sheikh Mohammed, 101
unconstitutionality of, 96–97
U.S. Congress and, 87
U.S. Department of Defense and, 108
in World War II, 108
See also Military Commissions Act of 2006; Military Commissions Act of 2009; military tribunals
Military Commissions Act of 2006, 70, 87–90, 111–13, 121, 135, 247, 272, 293n20, 293n21
Court of Appeals and, 88
habeas corpus and, 111–12, 120
legality of, 88
Obama administration and, 120
torture and, 112
U.S. Congress and, 112, 115–16
Military Commissions Act of 2009, 120–21, 135, 272
military necessity, 129–30
deference to in times of war, 132–37
fundamental values and, 134–35
military tribunals, 19–22, 25, 79–80, 111, 114, 135, 279
appellate review and, 81
establishment of, 155
procedural deficiencies of, 89
See also military commissions
minimalism, xvii, 56, 69–102
dangers of, 69–70, 76–77
democracy and, 70, 90–91
dilemma of each individual justice, 94–98
Hamdan v. Rumsfeld and, 82–83, 86
as a judicial strategy, 94–95, 96
Mobbs, Michael, 16–19, 22, 23, 29, 30, 47
Mohammed, Khalid Sheikh, 101, 120, 232
trial of, 156–57, 158–59, 232, 259
Mukasey, Michael B., 22–24, 176–77, 193, 198
Mumbai, India, terrorist attacks in, 104
National Security Agency (NSA), xv, 101, 109, 200–202, 221–22, 227, 232, 273
warrantless wiretapping and, 112–13
New York Times, 33, 198, 227, 229, 260
New York Times Co. v. Sullivan, 208
New York Times v. United States, 197
Nixon, Richard, 177, 236
noncitizens, 63
vs. citizens, 273
constitutional rights of, 22, 53–68, 74–75, 78–89, 107, 112, 115–16, 180, 182, 272–73
due process and, 3, 13, 40, 53–68
as enemy combatants, 112
FISA and, 240–41
in Guantánamo prison, 13–14
habeas corpus and, 12–15, 40, 53–68, 70–71, 78–89, 88, 107, 122, 165–66
imprisonment without trial and, 163–64
legal status of, 3, 13
military commissions and, 112, 121
principle of freedom and, 165
USA PATRIOT Act and, 12
warrantless wiretapping and, 273
Non-Detention Act of 1971, 44–46, 164–65
Northern Alliance, 7, 13, 15, 16, 17
North Jersey Media Group, Inc. v. Ashcroft, 29–30
Northwest Airlines, attempted bombing of, 119
Obama, Barack, 99
avoidance of phrase “War on Terror,” 153
banning of torture, 157
decision against truth commissions, 118, 194–95
decision not to criminally prosecute previous administration, 118, 194–95
decision not to prosecute CIA agents, 194–95
executive order banning torture, 118
executive orders confining CIA to interrogation based on Army Field Manual, 193
executive order to close Guantánamo, 156, 193
Guantánamo detainees’ hunger strike of 2013 and, 143, 144–45
national security agenda of, 221–22
policies on torture, 193–95
policy on imprisonment without trial, 156, 159–67
policy toward the Taliban, 150–51
promise to change counterterrorism policies of Bush Administration, 117–18
promise to close Guantánamo prison, xiii, 99, 117, 121–22, 143, 259
promise to develop system of “judicial and congressional oversight,” 159–60
on proportionality rule, 270–71
reasons for continuing Bush administration policies, 123
speech at National Archives 2009, 99–100, 150–52, 156, 159, 163, 165
speech at National Defense University, 270–71, 277
stated opposition to torture, 193
statement distinguishing between imprisonment policy on citizens vs. noncitizens, 163–64
targeted killing and, 260
vote against FISA Amendments Act of 2008, 122–23
See also Obama administration
Obama administration, 101–2
Arar case and, 181, 194
AUMF and, 159–60
blocking of judicial inquiries into extraordinary rendition, 118–19
Boumediene v. Bush and, 121–22
continuation of Bush-era policies, x, xiii, xiv, 100–103, 117–24, 143–44, 150–51, 156–57, 159–67, 202, 219, 223–24, 259, 272–73, 285
detention policy and, 161–67, 272–73, 310–11n8
electronic surveillance program of, 222–58
extraordinary rendition and, 193–94
FISA Amendments Act of 2008 and, 231–33
Khalid Sheikh Mohammed trial and, 120
military commissions and, 119–21
oversight system for imprisonment without trial, 159–61
principle of freedom and, 147, 161–67
targeted killing of citizens and, 273–74
Terrorist Surveillance Program and, 231–33
torture and, 118–19, 123, 193–95
warrantless wiretapping and, 122–23, 231–33
war with al-Qaeda and, 117–24, 219, 268
See also Obama, Barack
Occupied Territories, 129, 131, 133, 138, 310n7
O’Connor, Sandra Day, 4–5, 34
Boumediene v. Bush and, 311n11
Hamdi v. Rumsfeld and, 46–48, 49–52, 79–80, 113–14, 135, 164–65, 278–79, 290n14, 290n20
as minimalist, 69
Rasul v. Bush and, 95
United States v. Verdugo-Urquidez and, 64
Office of the Director of National Intelligence, 160, 242
Olmstead v. United States, 234, 254
Omnibus Crime Control and Safe Streets Act, 235–36
One Case at a Time (Sunstein), 70, 93
overbreadth doctrine, 256–57, 310n89
Padilla, Jose, 22–24, 35–36, 38–45, 67, 158, 164
downgrading of charges against, 43–44
habeas corpus and, 41–44
sentencing and resentencing of, 36
transfer to civilian custody, 289n7
See also Rumsfeld v. Padilla
Palestinians, 131–32, 138
See also Occupied Territories
Panetta, Leon, 193–94
Pentagon Papers case, 197
Persian Gulf War, 10
“personal” injury, 126
Philippines, 183
plea agreements, 25–26
political advocacy
coordinated versus independent, 218
crimina
lization of, xiv–xv, 200–220
democracy and, 218
First Amendment and, 207–15
political question doctrine, 282–83
Powell, Lewis, 236, 237
presidential power. See executive branch
principle of distinction, 270
principle of freedom, xiv, 39–40, 70, 81, 146–67, 289n12
adjustments in War on Terror, 154–55
bifurcated exclusionary rule and, 144, 157
citizens and, 165
exceptions for war, 105–6, 119, 144, 147–48, 154–56, 167
imprisonment without trial and, 163
noncitizens and, 165
Obama administration and, 161–67
procedural protections provided by, 147
U.S. Constitution and, 37–38, 42–45, 52, 77, 147
prisoners, 12–15
See also Bagram Air Field detainees; Guantánamo detainees; prisoners of war
prisoners of war, 12–13, 22, 67, 288n22
Third Geneva Convention and, 175–76
privacy
protections of, xvii, 108–10
reasonable expectation of, 253–54
right to privacy, xvii
warrants and, 235
probable cause, 201
FISA and, 244, 307n52
warrantless wiretapping and, 244–50
warrants and, 238–39
proportionality, 137–38
proportionality rule, 270–71, 274–75
proportionality test, 135–36
Protect America Act of 2007, 113, 122
qualified immunity doctrine, 185–86, 195
Rasul v. Bush, 34–35, 38, 52–68, 78–79, 80, 81, 86, 88–90, 95, 96
Breyer and, 95
Ginsburg and, 95, 96–97
Kennedy and, 66–67, 95
O’Connor and, 95
Souter and, 95
Stevens and, 53–68, 66, 69–70, 78–79, 95
Rehnquist, William, 42, 95
Hamdi v. Rumsfeld and, 46–48, 279
Rumsfeld v. Padilla and, 114
United States v. Verdugo-Urquidez and, 58–60, 62–66, 74–75, 78, 96–97, 246–48
Rehnquist Court, xii, 170, 226
rendition. See extraordinary rendition, definition of
Ridge, Tom, 198
right of access, 30, 80, 85
right of presence, 85
right of self-defense, preemptive strikes and, 266
right to counsel, 47–48, 80
right to privacy, xvii
Roberts, John, x, 95–96
confirmation hearing of, 208
Holder v. Humanitarian Law Project and, 198, 204–7, 209–16, 217–18, 219
military commissions and, 95–96
Roberts Court, warrantless wiretapping and, 226
Rochin v. California, 169
rules of evidence, 79–80, 84, 120
Rumsfeld, Donald, 175–76
Rumsfeld v. Padilla, 30–31, 34–36, 38, 40–45, 114–15
Saudi Arabia, 264, 290n27
Scalia, Antonin
Hamdan v. Rumsfeld and, 96
Hamdi v. Rumsfeld and, 46, 278–79
Olmstead v. United States and, 254
principle of freedom and, 289n12
on probable cause, 307–8n53
United States v. Jones and, 254
United States v. Verdugo-Urquidez and, 64
searches and seizures, xv, 58–60, 65, 74, 132, 196, 234, 250–51, 253–56
secretary of state, designation and regulation of foreign terrorist organizations, 203–4
secret evidence, disclosure of, 157–58
separation of powers, 110, 111, 116, 135, 166, 257–58, 268–69
Shahzad, Faisal, 163
Sixth Amendment, 39, 41, 48, 183
Snowden, Edward, xv, 221–23
Sotomayor, Sonia, 216
Souter, David
Hamdan v. Rumsfeld and, 96–97
Hamdi v. Rumsfeld and, 46, 48, 49, 80, 278
as minimalist, 69
Rasul v. Bush and, 95, 96–97
sovereignty
territorial, 265–66, 272
U.S. exercise of, 14–15
Spanish-American War, 183
“special needs” exception, 250–53
speech, criminalization of, 197–99
Sri Lanka, 198, 202, 203, 204–5, 212, 213, 214
state secrets doctrine, 188–92, 194, 195, 280–81
Stevens, John Paul, 66
Hamdan v. Rumsfeld and, xiii, 82–89, 96
Hamdi v. Rumsfeld and, 46, 278–79
Holder v. Humanitarian Law Project and, 215–16
minimalism and, 75–76
as minimalist, 69–70
principle of freedom and, 289n12
Rasul v. Bush and, 53–68, 69–70, 78–79, 95
retirement of, 215
United States v. Verdugo-Urquidez and, 64
Stewart, Potter, 236
Stotzky, Irwin, 6
structural injunction, paring back of, 170
substantive rationality, 137–38
Sunstein, Cass, One Case at a Time, 69–70
surveillance, xv, 228–56, 273, 307n51, 309n74
See also intelligence gathering; wiretapping
Suspension Clause, 166
Syria, 105, 129, 180–83, 185, 188
Taft, William Howard, 234, 254
Taliban, 7–8, 13, 15–16, 19–20, 39, 47, 77, 104, 107, 111, 113–14, 227, 266
citizens as, 164
as enemy combatants, 21–22, 27–29, 149–50, 153
Geneva Conventions and, 148–53
in Guantánamo prison, 155
imprisonment without trial and, 148–53, 162
Lindh and, 24–25, 26–28
Taliban army, 27–29
war with, 118, 119
Tamil Tigers, 202, 204–5, 212–13, 214, 219–20
targeted killing, xv, 101, 133, 136, 260, 262–85
of citizens, 272–74
civilian deaths as a result of, 271–72, 274–75, 280, 310n7
claims for damages as a result of, 280–81
congressional oversight of, 276–77
due process and, 267–70, 273–75, 280
of enemy combatants, 262–85
judicial review of, 275–85
legal standards for, 265–85, 276
Obama administration and, 273–74
oversight of, 276–82
procedures for assessing compliance, 276–82
prospective vs. retroactive inquiry into, 281–82
telephone communications
as evidence, 238–39
surveillance of, 222, 227–58
transcripts of, 238–39
terrorism, 21–22, 103–4, 202, 217–18
Barak’s rulings on, 133
civilians affected by, 136–37
constitutional rights and, 129
in Israel, 128–39
rule of law and, 128–39
threat of, 266
See also War on Terror; specific acts
terrorist organizations
criminalization of political advocacy on behalf of, 201–20
peaceful/humanitarian vs. violent support for, 204–5
regulation and designation of, 202–4
See also specific organizations
terrorists, alleged
imprisonment of without trial, 146–67
targeted killing of, 262–85
torture and extraordinary rendition of, 172–95
warrantless wiretapping of, 225–58
Terrorist Surveillance Program, 227–33, 241, 256–58
Third Geneva Convention, 19–21, 22–29, 67, 148–49
prisoners of war and, 175–76
Thomas, Clarence
Hamdan v. Rumsfeld and, 96
Hamdi v. Rumsfeld and, 46, 278
United States v. Verdugo-Urquidez and, 64
Times Square, attempted bom
bing in, 119
torture, xiii, xiv, 101, 105, 108, 110, 116, 118, 157, 168–70, 172, 229
Bush administration policies, 174–79
constitutional prohibition of, 178, 179–80, 186, 188
definitions of, 105, 174, 176–77, 178
Detainee Treatment Act of 2005 and, 110–11
exclusionary rule and, 157
extraterritorial, 169–70 (see also extraordinary rendition)
international law and, 169, 172
interrogation and, 174–76
Israel’s prohibition of, 131–32
memoranda defining guidelines for, 174–75
Military Commissions Act of 2006 and, 112
Obama and, 118, 157, 193–95
outsourcing of, 105, 178–80
prohibition of, x, 105, 131–32, 168–69, 172, 186, 188, 291n34
suits for damages after, 280–81
used by CIA, 171
truth commissions, 118, 194
Turkey, 198, 202, 203, 204–5, 213, 214
UN Convention against Torture (1984), 172, 186, 291n34
Uniform Code of Military Justice (UCMJ), 85
Article 21, 83, 86, 87
Article 36, 84, 86
United Nations, 217
Charter of, 7–8, 9, 265–67, 270, 272
Convention against Torture (1984), 172, 186, 291n34
PKK and, 213, 214
Security Council, 8, 10, 11, 266
United States v. Jones, 253–55
United States v. O’Brien, 216
United States v. Verdugo-Urquidez, xvi, 58–60, 66, 74, 246–48, 250
Brennan and, xvi, 60–61, 62, 64–66
Fourth Amendment and, 63–66
Kennedy and, 64–67, 246–47, 250
Rehnquist and, 62–66, 78, 96–97, 246–48
unlawful enemy combatants, 22–23, 136–37
citizens as, 164
concept of, 35
constitutional rights of, 23–24, 33, 35, 120–21
Guantánamo detainees as, 175–76
habeas corpus and, 115–17, 122
imprisonment of, 33–34, 115–17, 158–59, 175–76
legal status of, 24–26, 33–34
See also enemy combatants
UN Security Council, 8, 10, 11
USA PATRIOT Act, 12, 239
and Foreign Intelligence Surveillance Act (FISA), 240
U.S. citizens, 3, 273
as members of al-Qaeda, 22, 164
constitutional rights of, 15–16, 22–24, 33–35, 80, 106–7, 180, 272–73, 279–80 (see also specific constitutional rights)
due process and, 3, 15–16, 23–24, 39–40, 80, 113–14
as enemy combatants, 80, 106, 164, 262–85
evidentiary hearings and, 106–7
FISA and, 240
habeas corpus and, 15–16, 39–40, 41–44, 106–7, 113–14, 163–64
imprisonment without trial and, 163–64
as members of the Taliban, 164
principle of freedom and, 165
targeted killing of, 261, 272–74
warrantless wiretapping and, 273