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BEYOND THE LAW
This book provides detailed exposition of violations of international law autho-
rized and abetted bysecretmemos,authorizations,andordersoftheBush
administration – in particular, why several Executive claims were in error,
what illegal authorizations were given, what illegal interrogation tactics were
approved, and what illegal transfers and secret detentions occurred. It also
provides the most thorough documentation of cases demonstrating that the
President is bound by the laws of war; that decisions to detain persons, decide
their status, and mistreat them are subject to judicial review during the war;
and that the commander in chief power is subject to restraints by Congress.
Tests for combatant and prisoner of war status are contrasted with Executive
claims and the 2006 Military Commissions Act. Special military commissions
contemplated by President Bush are analyzed along with the Supreme Court’s
decision in Hamdan concerning their illegal structure and procedures, as well
as problems created by the 2006 Military Commissions Act.
Jordan J. Paust is the Mike and Teresa Baker Law Center Professor of Inter-
national Law at the Law Center of the University of Houston. He received an
A.B. and a J.D. from the University of California–Los Angeles and an LL.M.
from the University of Virginia, and he is a J.S.D. Candidate at Yale Univer-
sity. Professor Paust has also been a Visiting Edward Ball Eminent Scholar
University Chair in International Law at Florida State University, a Fulbright
Professor at the University of Salzburg, Austria, and a member of the faculty of
the U.S. Army Judge Advocate General’s School, International Law Division.
He has served on several committees on international law, human rights, laws
of war, terrorism, and the use of force in the American Society of International

This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written
p
ermission of Cambrid
g
e University Press.
ISBN-10 0-511-35477-0
ISBN-10 0-521-88426-8
ISBN-10 0-521-71120-7
Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
g
uarantee that any content on such websites is, or will remain, accurate or a
pp
ro
p
riate.
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
hardback
paperback
paperback
eBook (EBL)
eBook (EBL)
hardback
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CONTENTS
Preface page ix

CONTENTS
THREE.War and Enemy Status 47
A. Introduction 47
B. The United States Cannot Be at “War” with al Qaeda
or “Terrorism” 48
C. The Status of Various Detainees and the Legal Test for
Combatant Status 50
D. Combatant Immunity 53
E. Legal Tests for Prisoner of War Status 56
F. Da ngerous Consequences Can Arise iftheLegalTests
Are Changed 57
G. The Misconceived Military Commissions Act of 2006 58
H. Conclusion 63
FOUR.Judicial Power to Determine the Status and Rights of
Persons Detained Without Trial 65
A. Introduction 65
B. Propriety ofDetention and Necessity of Judicial Review Under
International Law 67
1.Human Rights Standards in Time of Peace, National
Emergency, or War 67
a. Permissible Detention Under Human Rights Law 67
b. Judicial Review of Detention Under Human Rights Law 68
2.DetentionUnder the Laws of WarDuringTimes of
International Armed Conflict 69
a. Detention of Prisoners of War 69
b. DetentionofOtherPersons 70
c. Judicial Review of Detention and Status Under the Laws
of War 71
C. Judicial Power and Responsibility to Determine the Status and
Rights of Detainees 71

and Impartial Court 116
4.DenialoftheRighttoTrialBeforeaRegularly Constituted,
Competent, Independent, and Impartial Tribunal
Established by Law 117
5.DenialoftheRightstoFair Procedure and Fair Rules
of Evidence 118
6.DenialoftheRighttoCounsel and to Effective
Representation 119
7.Conclusion 119
C. A Regularly Constituted Court with Fair Procedures: The
Supreme Court’s Decision in Hamdan 120
1.ProblemsConcerning Establishment of the Commissions 120
2.ProceduralViolations 121
D. The 2006 Military Commissions 127
E. Conclusion 131
Notes 133
Name Index 301
SubjectIndex 303
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PREFACE
Within a few months after al Qaeda’s unlawful terroristic attacks inside the
United States on September 11, 2001, the Bush administration embarked
on a “dirty war” response to terrorism involving methods of detention,
treatment, and interrogation that Vice President Cheney had generalized
as responses on “the dark side.” The “dirty war” would involve at least
cruel and inhumane treatment of captured human beings and the forced

One of the memos was a February 7, 2002,memorandum by President
Bush that authorized the denial of protections under the 1949 Geneva Con-
ventions to every member of al Qaeda and the Taliban. The existence of
other presidential memos and directives authorizing at least cruel and inhu-
mane treatment and the secret detention and disappearance of human
beings was reported in 2004,butgreater details had emerged by the time
President Bush publicly admitted in September 2006 that, indeed, “tough”
interrogation tactics and secret detentions had been approved and would
be continued by the CIA. These and other actions by the Bush administra-
tion sparked debate and litigation with respect to several matters of great
significance under international, constitutional, and federal statutory law.
In addition to creating individual civil and criminal responsibility for vio-
lations of international law, dirty war tactics have degraded this country,
its values, and its influence. They have degraded those who used them and
degraded those who did not oppose their use. As patriots of democratic
freedom understand, they threaten our democracy and the rule of law.
This book provides a detailed exposition of the types of violations of
treaties of the United States and customary international law authorized
and abetted by previously secret memos, letters, directives, authorizations,
and orders of President Bush, Secretary of Defense Rumsfeld, White House
Counsel Gonzales, and various other lawyers and officials within the Bush
administration – especially in Chapters One and Tw o.These chapters
demonstrate why several of the claims in such memos were in serious and
manifest error; what type of illegal authorizations and orders were actu-
ally given by the President, the Secretary of Defense, and various military
commanders at Guantanamo and in Iraq; what type of other memos and
authorizations existed in support of a common plan to violate the Geneva
Conventions, the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, and human rights law; what type
of illegal interrogation tactics were approved and used; what type of illegal

and prisoner of war status that should be applied with respect to persons
detained during an actual war, such as those in Afghanistan and Iraq. These
are contrasted with some of the claims made by the Executive to deny any
such status and resultant protections to members of the regular armed
forces of the Taliban – claims that are not in the interest of U.S. and foreign
military personnel who might be captured todayorinanyfuture war. Atten-
tion is also paid to the fact that the United States cannot be at “war” with
al Qaeda as such or with a tactic of “terrorism,” certain dangers that can
arise if the tests are changed, and relevant misconceptions and confusion
evidentinthe2006 Military Commissions Act.
The fact that the President is not above the law; that Executive decisions
to detain persons, to decide their status, and to mistreat them are subject to
judicial review even during actual war; and that the President’s commander
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xii
PREFACE
in chief power is subject to certain restraints by Congress and to absolute
restraints under the laws of war, among other international laws, provide
general bases for the detailed inquiry set forth in Chapters Four and Five.
Like Section E of Chapter One, these chapters provide pivotal details of law
and the numerous judicial decisions that are in complete contrast to the
Bush administration’s unconstitutional and autocratic commander-above-
the-law theory that the President should be able to engage in a “dirty war”
unbound by any inhibiting domestic or international law and free from
either any or any meaningful judicial supervision. Chapter One, Section
E;ChapterTwo,SectionsC.2 and D; and Chapter Five, Section A provide
the most thorough documentation of relevant trends in judicial decision
known to date concerning such matters. Because international law is part
of the law of the United States, has constitutional moorings, is relevant to

Transnat’l L. 811–63 (2005)
Harvard International Law Journal
Judicial Power to Determine the Status and Rights of Persons Detained
Without Trial, 44 Harv. Int’l L. J. 503–32 (2003)
Michigan Journal of International Law
Antiterrorism Military Commissions: Courting Illegality, 23 Mich. J.
Int’l L. 1–29 (2001)
Antiterrorism Military Commissions: The Ad Hoc DOD Rules of Pro-
cedure, 23 Mich. J. Int’l L. 677–94 (2002)
Utah Law Review
Above the Law: Unlawful Executive Authorizations Regarding Detainee
Treatment, Secret Renditions, Domestic Spying, and Claims to
Unchecked Executive Power, 2007 Utah L.Rev.345(2007)
Wayne Law Review
After 9/11,“No Neutral Ground” with Respect to Human Rights: Exec-
utive Claims and Actions of Special Concern and International Law
Regarding the Disappearance of Detainees, 50 Wayne L. Rev. 79, 83–
93 (2004)
xiii
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xiv
ACKNOWLEDGMENTS AND PERMISSIONS
Yale Journal of International Law
War and Enemy Status After 9/11:Attacks on the Laws of War, 28 Yale J.
Int’l L. 325–35 (2003)
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CHAPTER ONE
EXECUTIVE PLANS AND AUTHORIZATIONS TO VIOLATE

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BEYOND THE LAW
government in control of some 90 percent of the territory of Afghanistan
and had been recognized by a few states as the de jure government of
Afghanistan.
3
The Taliban regime also had been involved in a belligerency
with the Northern Alliance, an armed conflict to which the general laws
of war applied even before U.S. entry into Afghanistan in October 2001.
4
Moreover, it was reported that during the belligerency thousands of mem-
bers of the regular armed forces of Pakistan were involved in the armed
conflict in support of the Taliban,
5
a circumstance that also had interna-
tionalized the armed conflict before to the U.S. intervention.
During an international armed conflict such as the war between the
UnitedStatesandthe Talibanregime, all ofthecustomary lawsof warapply.
6
These also apply during a belligerency.
7
Customary laws of war include
the rights and duties reflected in the 1949 Geneva Conventions,
8
which
had been, and still are, treaties that are binding on the United States and
Afghanistan and their nationals.
9
Common Article 1 ofthe Geneva Conven-

17
that provides certain rights
and duties with respect to any person who is not taking an active part
in hostilities, thus including any person detained whether or not such a
person had previously engaged in hostilities and regardless of the person’s
status. Common Article 3 also happens to expressly require that all such
persons “shall in all circumstances be treated humanely,” thereby assuring
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EXECUTIVE PLANS AND AUTHORIZATIONS TO VIOLATE LAWS
3
that humane treatment is required regardless of claimed necessity or other
alleged excuses. Although common Article 3 was developed in 1949 to
extend protections to certain persons during an insurgency or armed con-
flict not of an international character,
18
common Article 3 now provides a
minimum set of customary rights and obligations during any international
armed conflict.
19
Under the Geneva Conventions, any person who is not a prisoner of war
has rights under the Geneva Civilian Convention, and there is no gap in
the reach of at least some forms of protection and rights of persons.
20
For
example, as noted, common Article 3 assures that any person detained has
certain rights “inall circumstances” and “at any time and in any place what-
soever,” whether the detainee is a prisonerofwar, unprivileged belligerent,
terrorist, or noncombatant.
21

Article 4 of the Geneva Civilian Convention assures that foreign persons
outside the territory of the United States are entitled to protections in Parts
II and III of the Convention.
28
Part II applies to “the whole of the popu-
lations of the countries in conflict”
29
and protections therein include the
duty of parties to an armed conflict, “[a]s far as military considerations
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BEYOND THE LAW
allow to assist persons exposed to grave danger, and to protect them
against ill-treatment.”
30
Within Part III of the Convention, one finds
additional rights and guarantees relevant to the treatment and interroga-
tion of persons.Forexample, Article 27 recognizes that “[p]rotected persons
are entitled, in all circumstances, to respect for their persons, their hon-
our, their family rights, their religious convictions and practices, and their
manners and customs”; it adds that “[t]hey shall at all times be humanely
treated, andshall beprotectedespeciallyagainst all actsof violenceorthreats
thereof and against insults and public curiosity.”
31
Article 31 requires that
“[n]o physical or moral coercion shall be exercised against protected per-
sons, inparticular to obtaininformationfromthemor fromthird parties.”
32
Article 32 supplements the prohibitionsby requiring that parties to the Con-

tion of human beings, customary and treaty-based human rights law that is
nonderogable under all circumstances and is also part of peremptory rights
and prohibitions (jus cogens)requires that “[n]o one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.”
40
As customary and peremptory rights and prohibitions jus cogens,thepro-
hibitions of torture and cruel, inhuman, or degrading treatment apply
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EXECUTIVE PLANS AND AUTHORIZATIONS TO VIOLATE LAWS
5
universally and without any limitations in allegedly valid reservations or
understandings during ratification of a relevant treaty,
41
such as those
attempted with respect to the International Covenant on Civil and Politi-
cal Rights (ICCPR)
42
or the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
43
C. EXECUTIVE PLANS AND AUTHORIZATIONS
Despite such clear and absolute requirements under the laws of war and
human rights law, the plan within the Bush administration to deny protec-
tions under international law that led to approval and use of illegal inter-
rogation tactics rested on what White House Counsel Alberto Gonzales
advised President Bush in January 2002 was a supposed “high premium
on other factors, such as the ability to quickly obtain information,”
44
sup-

humane treatment standards of Common Article 3 of the Geneva Conven-
tions – the text, negotiating record, subsequent practice and legal opinion
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BEYOND THE LAW
confirm that Common Article 3 provides the minimal standards applicable
in any armed conflict.”
50
The plan to deny Geneva protections and to authorize illegal interroga-
tion tactics would be furthered, Gonzales opined, by “[a]dhering to your
determination that GPW does not apply.”
51
The memo to the President
further claimed that “[a] determination that GPW is not applicable to
the Taliban would mean that . . . [the federal criminal statute addressed
supposedly] would not applyto actions takenwith respect to the Taliban.”
52
The latter claim is not true in view of numerous judicial decisions through-
out our history reviewing Executive decisions concerning the status of per-
sons during war
53
and affirming constitutionally based judicial power ulti-
mately to decide whether and how the laws of war, as relevant law, apply,
54
points documented in detail in Chapter Four.Nonetheless, the claim is evi-
dence of an unprincipled plan to evade the reach of law and to take actions
in violation of Geneva law while seeking to avoid criminal sanctions. All
were on notice of what the application of Geneva law required.
As the Gonzales memo noted, the President had previously followed the

has never determined that the GPW did not apply to an armed conflict in
which its forceshavebeenengaged [T]he GPW was intended to cover
all types of armed conflict and did not by its terms limit its application.”
57
Such a warning was reiterated a week later in a memo by the Legal Adviser
to the Department of State, William H. Taft IV, to White House Counsel
Gonzales:
The President should know that a decision that the Conventions do apply
is consistent with the plain language of the Conventions and the unvaried
practice of the United States in introducing its forces into conflict over
fifty years. It is consistent with the advice of DOS lawyers and, as far
as is known, the position of every other party to the Conventions. It is
consistent with UN Security Council Resolution 1193 affirming that “All
parties to the conflict [in Afghanistan] are bound to comply with their
obligations under international humanitarian law and in particular the
Geneva Conventions.”
58
Attorney General John Ashcroft, however, had been opposed to similar
advice from the National Security Council and had urged the President to
deny applicability of the Geneva Conventions and their protections in an
effort to avoid criminal sanctions because:
aPresidential determination against treaty applicability would provide
the highest assurance that no court would subsequently entertain charges
that American military officers, intelligence officials, or law enforcement
officials violatedGenevaConvention rulesrelating tofieldconduct, deten-
tion conduct or interrogation of detainees. The War Crimes Act of 1996
makes violation of parts of the Geneva Convention a crime in the United
States.
59
The President adhered to the erroneous decision until February 7, 2002

As noted soon thereafter, however:
[t]he White House statement demonstrates remarkable ignorance of the
nature and reach of treaties and customary international law. First, any
member ofal Qaeda who isa national ofa state thathas ratified the relevant
treaties is protected by them. Nearly every state, including Saudi Arabia,
is a signatory to these treaties. Second, the 1949 Geneva Conventions are
part of customary international law that is universally applicable in times
of armed conflict and, as such, protect all human beings according to
their terms. Third, common Article 3 provides nonderogable protections
and due process guarantees for every human being who is captured and,
like common Article 1,assures their application in all circumstances. Also,
international terrorism and terrorism in war are not new and clearly were
contemplated during the drafting of the treaties.
62
The Legal Adviser to the State Department had also aptly warned that the
portion of the Gonzales memo:
[s]uggesting a distinction between our conflict with al Qaeda and our
conflict with the Taliban does not conform to the structure of the Con-
ventions. The Conventions call for a decision whether they apply to the
conflict in Afghanistan. If they do, their provisions are applicable to all
persons involvedinthatconflict–alQaeda,Taliban,NorthernAlliance,
U.S. troops, civilians, etc.
63
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EXECUTIVE PLANS AND AUTHORIZATIONS TO VIOLATE LAWS
9
The plan involving White House Counsel Gonzales and President Bush
evidenced in the Gonzales memo was legally inept for an additional reason.
The memo openly admitted the unavoidable fact that “the customary laws

ident Bush and it was quickly “endorsed by top lawyers in the White House,
the Pentagon and the vice president’s office”
67
to furtherthecommon plan.
The Yoo-Delahunty memo had argued in support of denial of Geneva
protections for members of al Qaeda that “the laws of armed conflict . . .
[based in] treaties do not protect members of the al Qaeda organization,
which as anon-state actor cannot be aparty to the international agreements
governing war.”
68
As noted, however,protectionofalQaedapersonsduring
an armed conflict does not depend on whether al Qaeda is a state actor
or a party to law of war treaties.
69
The Yoo-Delahunty memo recognized
that violations of common Article 3 of the Geneva Conventions are war