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Distinction with a Difference

Published online by Cambridge University Press:  28 February 2017

Diane Marie Amann*
Affiliation:
American Society of International Law; California International Law Center at King Hall, University of California, Davis, School of Law

Abstract

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Type
Same or Different? Bush and Obama Administration Approaches to Fighting Terrorists
Copyright
Copyright © American Society of International Law 2010

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References

1 548 U.S. 557 (2006), discussed in Amann, Diane Marie, Punish or Surveil, 16 Transnat’l L. & Contemp. Probs. 873 (2007)Google Scholar.

2 Executive Order 13491, Ensuring Lawful Interrogation, 74 Fed. Reg. 4893 (2009)Google Scholar [hereinafter Lawful Interroga tions Order].

3 Executive Order 13492, Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Close of Detention Facilities, 74 Fed. Reg. 4897 (2009)Google Scholar [hereinafter Guantánamo Closure Order].

4 Executive Order 13493, Review of Detention Policy Options, 74 Fed. Reg. 4901 (2009)Google Scholar.

5 Lawful Interrogations Order, supra note 2, § 3(a), 74 Fed. Reg. at 4894.

6 Id.; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Art. 4-8, Dec. 10, 1984, 108 Stat. 382, 1465 U.N.T.S. 85. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Common Article 3].

7 Guantánamo Closure Order, supra note 3, §6, 74 Fed. Reg. at 4899.

8 Lawful Interrogations Order, supra note 2, §3(a), 74 Fed. Reg. at 4894.

9 Id., 74 Fed. Reg. at 4893.

10 Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 3 C.F.R. 918 (2001) (citing Authorization for use of Military Force, Sept. 18, 2001, §2(a), Pub. L. No. 107-40, 115 Stat. 224 (2001).

11 See generally Amann, Diane Marie, Abu Ghraib, 153 U. Pa. L. Rev. 2085 (2005)CrossRefGoogle Scholar; Amann, Diane Marie, Guantánamo, 42 Colum. J. Transnat’l L. 263 (2004)Google Scholar.

12 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 520-21, 538 (2004) (plurality opinion) (O’Connor, J.).

13 Military Commissions Act of 2006, 10 U.S.C. §§5(a), 948b(f)-(g). See President Bush Signs Military Commissions Act of 2006, Oct. 17, 2006, http://georgewbush-whitehouse.archives.gov/news/releases/2006/10/20061017-1.html (visited July 8, 2010).

13 Dep’t of the Army, Field Manual No. 2-22.3: Human Intelligence Collector Operations (Sept. 2006), available at http://www.arrny.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf (visited July 8, 2010).

15 See id. at M-1—M-10.

16 Id. at vii. At the roundtable during which the speaker delivered these remarks, co-panelist Bellinger said that during Bush’s

whole second term, a number of us worked very, very hard to try to put detainee policies and laws on a better footing. ... There were a number of us who were working very, very hard to get Common Article III agreed to. The ironic thing is that we had Common Article III in the Army Field Manual and were still battling whether it was going to be included or not, with the State Department pushing and pushing and pushing, when finally, the Supreme Court just decided the issue.

Author’s transcription; audio available at http://www.asilannualmeeting.org/.

17 See Dep’t of the Army, Field Manual No. 2-22.3, supra note 36, at vi.

18 Lawful Interrogation Order, supra note 2, §3(a), 74 Fed. Reg. at 4894. President Obama also ordered closure of any remaining Cia detention sites and enjoined the Cia from operating “any such detention facility in the future.” Id., §4(a). President Bush had suspended this “program” in 2006, but did not order its elimination. See White House, President Discusses Creation of Military Commissions to Try Suspected Terrorists, Sept. 6, 2006, http://georgewbush-whitehouse.archives.gov/news/releases/2006/09/20060906-3.html (visited July 8, 2010).

19 See, e.g., Priest, Dana, CIA Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005 Google Scholar, at A1; see generally Amann, Abu Ghraib, supra note 11.

20 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter Covenant or ICCPR]. Another such treaty, potentially relevant in certain imaginable situations, is the International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195.

21 On the applicability of the Covenant, the Geneva Conventions, and other instruments of human rights and humanitarian law to post-September 11 detention and interrogation, see generally Amann, Guantánamo, supra note 11.

22 Compare ICCPR, supra note 20, Art. 2( 1 ) (pledging that “[e]ach State Party” will extend enumerated protections “to all individuals within its territory and subject to its jurisdiction”) with Common Article 3, supra note 6 (limiting standards to “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”).

23 Hamdan, 548 U.S. at 629-32 & n.61.

24 542 U.S. 466, 483 n.15 (2004).

25 Cf. Diane Marie Amann, Interrogation Paradigm, or A Prince Unclothed, Sept. 18, 2006, unpublished manuscript, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=955430 (visited July 8, 2010) (arguing that no traditional legal framework justifies indefinite detention in such circumstances).

26 See Higham, Scott & Finn, Peter, At Least $500 Million Has Been Spent Since 9/11 on Renovating Guantanamo Bay, Wash. Post, June 7, 2010 Google Scholar, at A1 (stating that 181 persons remained at Guantanamo).

27 See Savage, Charlie, An Appeals Panel Denies Detainees U.S. Court Access, N.Y. Times, May 22, 2010 Google Scholar, at Al (discussing Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010).

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