TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

CPR) to its Guantanamo Bay detainee policy. The ICCPR prohibits arbitrarydetention. (The US responded that the ICCPR only applies within US territoryand that the laws of war govern the continuing armed conflict against al Qaeda.)323 As with most forms of international law, however, there is little directenforcement of human rights law.There has been some controversy as to whether the protections for detaineeslisted in the Third and Fourth Geneva Conventions apply to non-internationalarmed conflicts (armed conflicts between state and non-state actors). Forexample, in 2002 then-assistant Attorney General John Yoo argued in a nowfamous memorandum that Common Article III did not apply to the conflictwith al Qaeda because it was not an international armed conflict. 324 However,in Hamdan the Supreme Court held firmly that Common Article III does applyin non-international armed conflicts such as the current military actionagainst the Taliban.Laws Governing the Detention of al Qaedaand Taliban MembersThe Authorization for the Use of Military Force (AUMF) allows for the detentionof al Qaeda and Taliban members. In Hamdi v. Rumsfeld, discussed ingreater detail below, the Supreme Court upheld the legality of the AUMF, andthe Obama Administration issued its interpretation of the AUMF shortly afterthe 2009 Inauguration.The Authorization for the Use of Military ForceThe text of the AUMF is extremely short; its two sections consist of only fourparagraphs. Despite its brevity, it gives authority to the President to use all necessaryand proper force against those who committed the 9/11 terror attacksand to “prevent any future acts of terrorism against the United States by suchnations, organizations, or persons.” 325 It does not explicitly authorize detentionof enemy combatants. However, most legal scholars and national security lawyersagree that implied in this authorization is the power to “target, capture,and detain enemy combatants.” 326There is serious disagreement over the scope of the AUMF’s detention autho-114 Trials by Fire: Counterterrorism and the Law

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