THE DANGEROUS WORLD OF INDEFINITE DETENTIONS: VIETNAM TO
ABU GHRAIB
Jennifer Van Bergen† and Douglas Valentine††
I. INTRODUCTION1
The thesis of this paper is that where you find administrative detentions, 2 you are likely to find torture. We will show that this connection ex†

Jennifer Van Bergen is a former adjunct faculty member at the New School University
in New York, where she taught in the Writing Program from 1993-2002. She also taught the
first New School anti-terrorism law course in the Social Sciences Division in 2003. She is a
graduate of Benjamin N. Cardozo School of Law. She has written articles on human rights,
civil liberties, the anti-terrorism laws, and other topics as a Guest Columnist for the Writ
Column on Findlaw and other internet publications. She has published legal scholarly articles
on the anti-terrorism laws and the presidential electoral tie of 1801. Her book JENNIFER VAN
BERGEN, THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (2004) is a constitutional primer for citizens which looks into the actions of the Bush Administration. Her upcoming book JENNIFER VAN BERGEN, ARCHETYPES FOR WRITERS: USING THE POWER OF YOUR
SUBCONSCIOUS (forthcoming 2007) will be out at the end of 2007.
††
Douglas Valentine is the author of numerous articles and four books: DOUGLAS
VALENTINE, THE HOTEL TACLOBAN (1984), DOUGLAS VALENTINE, THE PHOENIX PROGRAM
(1990), DOUGLAS VALENTINE, TDY (2000) and DOUGLAS VALENTINE, THE STRENGTH OF THE
WOLF (2004). His fifth book, a history of federal drug law enforcement, will be published
next year by University Press of Kansas. He dedicates this article to Alice.
1
Throughout this article, the authors use documents that were obtained by Douglas Valentine (“DV”) through Freedom of Information Act requests during the writing of his book,
DOUGLAS VALENTINE, THE PHOENIX PROGRAM (reprint 2000) (1990) [hereinafter
VALENTINE]. These documents are in DV’s personal collection, identified by subject and date
[hereinafter DV Collection]. Documents in the DV collection are here cited by the title of the
document, to the extent it can be ascertained, or by other identifying features of the document(s). See generally TheMemoryHole.org, Documents from the Phoenix Program: Supplied and Introduced by Douglas Valentine, http://www.thememoryhole.org/phoenix/.
2
In this article, the terms administrative detentions, indefinite detentions, detention
scheme, or simply detentions, mean “detention by the Executive Branch without traditional
due process and/or human rights protections.” A large portion of the discussion in this paper
focuses on illustrations of improper or inadequate process or lack of procedural protections.
We understand that detentions of POW’s are lawful during the duration of an armed conflict.
The detainees held in the War on Terror, however, have not been determined to be POW’s.
Where a detainee in an armed conflict is not determined to be a POW, he may not be detained indefinitely without charges. See Jordan J. Paust, Judicial Power To Determine the
Status and Rights of Persons Detained Without Trial, 44 HARV. INT'L L.J. 503, 514 (2003)
[hereinafter Paust, Judicial Power] (“If any person detained during an armed conflict is not a
POW, such person nevertheless benefits from protections under common Article 3 of the
Geneva Conventions, which applies today in all armed conflicts and which incorporates
customary human rights to due process into the conventions.”).

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ists even where it is clear that investigations and screenings leading to such
detentions are, as Alberto Gonzales put it, “not haphazard, but elaborate,
and careful . . . reasoned and deliberate.”3
This reason is simple and can be traced to the elements of administrative detention itself: the absence of human rights safeguards and normal
legal guarantees such as due process, habeas corpus, fair trial, confidential
legal counsel, and judicial review; vague and confusing definitions, standards, and procedures; inadequate adversarial procedural oversight; excessive Executive Branch power stemming from prolonged emergencies; and
the involvement of the Central Intelligence Agency (“CIA”) or other secret,
thus unaccountable, Executive Branch agencies .
Without such protections, justice does not work and human rights
are jeopardized. As William F. Schultz, Executive Director of Amnesty
International, put it:
This year we are witnessing not just a series of brutal but fundamentally
independent human rights violations committed by disparate governments
around the globe. This year we are witnessing something far more fundamental and far more dangerous. This year we are witnessing the orchestrated destruction by the United States of the very basis, the fragile scaffolding, upon which international human rights have been built, painstakingly, bit by bit by bit, since the end of World War II.4

The system has been intentionally broken by the Bush Administration, just
as it was by the Johnson and Nixon Administrations during the Vietnam
War.
A. Buried Truths about Detentions and Torture
Section 412 of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (“PATRIOT Act”) provides for the “mandatory detention of suspected
terrorists.”5 This section nowhere refers to the detentions as “administrative
detentions,” which result from administrative (that is, Executive Branch),
not judicial, determinations. Yet this is exactly what they are, and they have
been used before. The U.S. Government’s internment of Japanese immi3

Alberto R. Gonzales, Counsel to the President, Remarks Before the American Bar Association Standing Committee on Law and National Security (Feb. 24, 2004), available at
http://www.abanet.org/natsecurity/judge_gonzales.pdf [hereinafter Gonzales Remarks].
4
William F. Schultz, Executive Dir., Amnesty Int’l, Remarks at the Welcoming Plenary
of the Annual General Meeting of Amnesty International (Apr. 4, 2003), http://www.amnesty
usa.org/events/agm/agm2003/williamshulz.html.
5
See Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, § 412, 115 Stat. 272, 35053 (2001) (codified at 8 U.S.C.S. § 1226a (2005)).

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grants during the Second World War is perhaps the most recognizable example.
Section 412(a) authorizes the Attorney General to take into custody
any alien whom he certifies as a terrorist.6 The alien may be detained indefinitely, in renewable periods of six months, as long as the Attorney General determines that he is a threat to national security, or endangers some
individual or the general public.7
Administrative detentions—sometimes called preventive detentions—are, by definition and practice, sought only during “national emergencies.” The emergency is the rationale for depriving suspected terrorists
of adequate due process or human rights safeguards. A declaration of a national emergency is generally made unilaterally by the President and, once
declared, the administrative detention laws may stay on the books for decades. This is one of the primary reasons why they are so dangerous, for
without any Congressional determination of the beginning or end of hostilities, these inherently anti-democratic laws may be used for purposes of political repression.8
In promulgating the PATRIOT Act administrative detention provision, Congress unlearned the lessons of our founders. They subverted treasured safeguards found in the Declaration of Independence, the U.S. Constitution, and its core Bill of Rights.
In enacting Section 412, Congress forgot its own teaching from
only thirty years earlier when, in 1971, it repealed the Emergency Detention
Act of 1950 (a law enacted in reaction to the hysteria of the Communist
scare of the infamous McCarthy era)9 and enacted the Non-Detention Act,
prohibiting the detention of United States citizens “except pursuant to an
Act of Congress.”10 The Emergency Detention Act (“EDA”) was modeled
on the detention laws used to incarcerate people of Japanese descent during
World War II and passed by Congress over President Truman’s veto. The
EDA provided for administrative detentions of persons whom the Attorney

6

Id. § 412(a)(1) (codified at 8 U.S.C.S. § 1226a(a)(1) (2005)).
See id. § 412(a)(7) (codified at 8 U.S.C.S. § 1226a(a)(7) (2005)).
8
There was no declaration of national emergency preceding the enactment of the
PATRIOT Act, however.
9
Act to amend title 18, United States Code, to Prohibit the Establishment of Detention
Camps, and for Other Purposes, Pub. L. No. 92-128, 85 Stat. 347 (codified at 18 U.S.C. §
4001(a) (2000)).
10
Id. See also Masumi Izumi, Prohibiting “American Concentration Camps”: Repeal of
the Emergency Detention Act and the Public Historical Memory of the Japanese American
Internment, 74 PAC. HIST. REV. 165, 190-91, 191 n.68 (2005), available at http://caliber.ucp
ress.net/doi/pdf/10.1525/phr.2005.74.2.165.
7

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General believed might commit espionage or sabotage, if the President declared the existence of an “internal security emergency.”11
The EDA was never invoked12 and ultimately was repealed because
it came widely to be viewed as dangerous to civil liberties.13 Truman, in
unsuccessfully attempting to veto it, had noted that it “would make a mockery of our Bill of Rights [and] would actually weaken our internal security
measures.”14
Today’s Congress seems to have forgotten the lessons of history
and since September 11th many Americans have blindly accepted the Bush
Administration’s assertion of authority to indefinitely detain persons without a trial. We believe the government is only detaining terrorist suspects to
keep them from doing us harm. Having put our faith in the government in a
time of a perceived emergency, we believe the Administration’s intention is
to protect their freedoms, not to create a system for creating and abusing
detainees.
Yet, legal scholars have raised concerns about the PATRIOT Act’s
detention provisions, as well as the detention provisions of the Military
Commissions promulgated under President Bush’s Military Order of November 13, 2001, which allow the Secretary of Defense to detain designated
alien terrorist suspects without the restrictions that Section 412 contains.15
11

Emergency Detention Act of 1950, 50 U.S.C. §§ 811-26 (1970) (repealed 1971); Internal Security (McCarran) Act of 1950, 50 U.S.C. § 781 (1988) (repealed 1993) (including the
EDA as title II and also referred to as “the anticommunist law”).
12
See Izumi, supra note 10, at 186 (“Although the [EDA] has not been invoked since its
enactment, its mere presence on the books is an offense especially to Americans of color.”
(quoting Hearings Relating to Various Bills to Repeal the Emergency Detention Act of 1950:
Hearings Before the H. Comm. on Internal Sec., 91st Cong. 3034 (1970) (statement of Rep.
Shirley Chisholm)).
13
See Brief of Fred Korematsu et al. as Amici Curiae Supporting Respondents, Rumsfeld
v. Padilla, 542 U.S. 426 (2004) (No. 03-1027), available at http://pegc.noip.info/archive/Supreme_Court/
Padilla_merits/Padilla_am_Korematsu.pdf (“[M]embers of Congress expressed concern
regarding whether the [EDA] violated constitutional guarantees by permitting ‘detentions not
on the basis of an actual act committed in violation of law, but on the basis of mere suspicion.’” (quoting 117 CONG. REC. 31535 (1971) (statement of Rep. Evins)). See also Izumi,
supra note 10, at 166 (“[T]he mere continued existence of these legal provisions has aroused
concern among many Americans that the act might someday be used to apprehend and detain
citizens who hold unpopular views.” (quoting President Richard M. Nixon: Statement on
Signing Bill Repealing the Emergency Detention Act of 1950, PUB. PAPERS 985, 986 (Sept.
25, 1971))).
14
MICHAEL BARSON, BETTER DEAD THAN RED!: A NOSTALGIC LOOK AT THE GOLDEN
YEARS OF RUSSIAPHOBIA, RED-BAITING, AND OTHER COMMIE MADNESS (1992).
15
See 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). See generally U.S. Dep’t
of Def., Military Commission Order No. 1: Procedures for Trials by Military Commissions
for Certain Non-United States Citizens in the War Against Terrorism, 32 C.F.R. 9.1-9.12

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Additionally, the detentions of U.S. citizens Yaser Esam Hamdi, Jose
Padilla, and Ali Saleh Kahlah al-Marri16 have raised concerns. President
Bush, citing his power as Commander-in-Chief and the laws of war, has
unilaterally declared these individuals “unlawful enemy combatants” subject to indefinite detention without trial or access to an attorney and without
providing for a status determination hearing by a competent tribunal, required by the Geneva Conventions.17 The central concern raised by qualified legal observers about these detentions generally involves issues of due
process and other constitutional and/or human rights guarantees.18
However, few legal scholars or government officials have discussed
the historically established connection between administrative detentions
and torture. The subject only came into public consciousness with the revelation that U.S. soldiers were torturing terrorist suspects at Abu Ghraib
Prison in Iraq, Bagram Airbase in Afghanistan, and the detention facilities
at the U.S. Naval Base in Guantanamo, Cuba. Since then, American and
foreign journalists and human rights activists began to raise suspicions, subsequently borne out, that U.S. soldiers and CIA officers were routinely torturing terrorist suspects at numerous detention centers around the world.19
(2004) (including “Procedures for Trials by Military Commissions of Certain Non-United
States Citizens in the War Against Terrorism” as § 9); Charles Doyle, Senior Specialist,
Cong. Research Serv., Terrorism: Section by Section Analysis of the USA PATRIOT Act,
CRS Report for Congress (Dec. 10, 2001), available at http://fpc.state.gov/documents
/organization/7952.pdf (noting “Uncertain is the relationship between section 412 and the
President’s Military Order of November 13, 2001, which allows [detention] . . . without
express limitation or condition except with regard to food, water, [etc.]”).
16
See infra notes 30-33 and accompanying text.
17
See infra note 276. After the Supreme Court ruled in the Rasul v. Bush, 542 U.S. 466
(2004) and Hamdi v. Rumsfeld, 542 U.S. 507 (2004) cases that enemy combatants have
some due process rights, the Administration provided for status determination hearings. See
infra notes 140-42 and accompanying text.
18
See NEAL R. SONNETT ET AL., ABA TASK FORCE ON TREATMENT OF ENEMY
COMBATANTS, PRELIMINARY REPORT (2002), available at http://www.abanet.org/leadership
/enemy_combatants.pdf [hereinafter ABA TASK FORCE REPORT]. See also id. at 22 (“Congress should . . . maintain continuing oversight of detention of U.S. citizens to assure that
such detentions are consistent with Due Process, American tradition, and international law.”)
See generally id. at 20-25 (explaining ABA’s recommendations). But see Gonzales Remarks,
supra note 3 (“But nothing in the law of war has ever required a country to charge enemy
combatants with crimes, provide them access to counsel, or allow them to challenge their
detention in court.”).
19
See Will Dunham, US Invites UN Torture Investigator to Guantanamo, EPOCH TIMES,
Oct. 29, 2005, available at http://english.epochtimes.com/news/5-10-29/33887.html. See also
Press Release, Am. Civil Liberties Union, U.S. Operatives Killed Detainees During Interrogations in Afghanistan and Iraq (Oct. 24, 2005), available at http://www.aclu.org/intlhu
manrights/gen/21236prs20051024.html [hereinafter ACLU, U.S. Killed Detainees]. See also
Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, at A1,
available at http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110
101644.html.

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Nonetheless, the close historical connection between administrative
detentions and torture has largely remained unrecognized.
In this paper, we show that the conjoining of administrative detentions and torture is sadly by no means new to U.S. Government policies and
practices. Specifically, we show that during the Vietnam War, the United
States engaged in a massive program of indefinite administrative detentions
in South Vietnam of persons considered “dangerous to the national security” that engendered widespread torture and deaths of terrorist suspects.
There are many similarities between the Vietnam detentions and
those used in the War on Terror, and those similarities are found not only
within the procedures themselves but in the rationales for and policies behind them—and even in the conditions of fear that created them.
We do not attempt to show here that administrative detentions alone
compel the use of torture. Our view is that where administrative detentions
are used—where, during a perceived national emergency or threat, people
are detained without due process—torture is only a small step away.20
Furthermore, the Vietnam detention procedures provide a clear and
compelling flow chart of the web of connections between administrative
detentions, intelligence laws, national security courts (i.e. courts intended to
deal exclusively with national security concerns), violations of international
law (particularly the Geneva Conventions), and torture. We will show that
these components now also appear in U.S. law and policies in the War on
Terror.
Behind this web is a disturbing logic rooted in the dark side of the
human psyche. The purpose of detention is to keep the individual secured,
obtain a confession or intelligence on other suspected terrorists, and sometimes to turn a suspect into a double agent.21 Torture in varying degrees has
historically been used to achieve such results.22 Intelligence laws (spying on
20
Due process is a right recognized in international law to all persons. See infra Appendix
A for a note on the general principles of international human rights we adopt here. We also
adopt the Resolution passed by the American Society of International Law at its centennial
annual meeting in Washington, DC, on March 30, 2006. American Society of International
Law, Resolution Adopted, http://www.asil.org/events/am06/resolutions.html. See infra Appendix C for text. See also the earlier draft ASIL resolution and list of signatures (presented
by Ben Davis) and a competing draft. The Kirgis Draft, http://law.utoledo.edu/faculty/
BDavis/BDavis.htm.
21
Cf. Gonzales Remarks, supra note 3, at 4 (“The detention of enemy combatants serves
two vital objectives in the global war on terror: preventing killers from rejoining the enemy
and continuing to fight, and enabling the collection of intelligence about the enemy.”).
22
See Mark Bowden, The Dark Art of Interrogation, ATLANTIC MONTHLY, Oct. 2003, at
51, available at http://www.theatlantic.com/doc/200310/bowden (“Governments around the
world continue to employ rape and mutilation, and to harm family members, including children, in order to extort confessions or information from those in captivity.”). See also
Amanda Ripley, The Rules of Interrogation: It’s a Murky Business, But Some Methods Work
Better Than Others, TIME, May 17, 2004, at 45, available at http://www.time.com/

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suspects without probable cause of criminal activity) and “national security
courts”23 or military tribunals (conducted without adequate due process and
other constitutional protections) support the purpose of administrative detentions, as does ignoring the Geneva Conventions. We will thus spend
some time discussing each of these issues.
Just as it prevents publishing photographs of body bags of dead
U.S. soldiers, the Bush Administration uses censorship, disinformation and
propaganda to carefully conceal the brutal logic of its unstated policies from
the public. But as news reports increasingly show, the connection between
administrative detentions and torture is far from tenuous, or, more importantly, far from unintentional. And any administration that engages in the
intentional creation of such a web—a criminal conspiracy—should be held
responsible for the predictable result.24
Because we feel that the convergence between the practices of these
two periods (Vietnam and today) is most clearly illustrated by a review of
the laws and procedures, we have not attempted here to survey details of
time/archive/preview/0,10987,994180,00.html (“If such interrogation tactics are legally
questionable, are they at least useful? . . . The answer is yes—sometimes—but not without
great risk.”); Hina Jilani, Antiterrorism Strategies and Protecting Human Rights, AMNESTY
NOW, Summer 2002, at 1 (explaining that arbitrary detention and the “use of torture to extract confessions or information has increased.”).
23
The concept of “national security courts” was recently proposed by a former federal
prosecutor. Andrew C. McCarthy, Abu Ghraib & Enemy Combatants: An Opportunity to
Draw Good Out of Evil, NAT’L REV. ONLINE, May 11, 2004, http://www.nationalreview.com/
mccarthy/mccarthy200405110832.asp. For a critique of this concept, see Jennifer Van Bergen, If They Lie in Public, What Would They Do in Secret?: National Security Courts and
Torture Warrants, COUNTERPUNCH (Counterpunch, Petrolia, Cal.), Aug. 20, 2004, available
at http://www.counterpunch.org/bergen08202004.html. See also discussion infra Part IV.B.
24
Others are now calling for high level accountability. See Jordan J. Paust, Executive
Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 COLUM. J. TRANSNAT’L L. 811, 862-63 (2005) [hereinafter Paust, Executive Plans] (“I know of no other instance in the long history of the United States of a plan
approved by lawyers and at the highest levels of our government systematically to deny
human beings protections under the laws of war. . . . I know of no other authorization of a
President to deny treatment required under the Geneva Conventions. I know of no other
instance in our history when a Secretary of Defense, top U.S. Generals, or a DOD Working
Group approved such denials.”); ACLU, U.S. Killed Detainees, supra note 19 (quoting Anthony D. Romero, Executive Director, Am. Civil Liberties Union: “High-ranking officials
who knew about the torture and sat on their hands and those who created and endorsed these
policies must be held accountable.”); Joanne Laurier, PBS Film Documents Rumsfeld’s Role
in Authorizing Torture, WORLD SOCIALIST WEB SITE, Oct. 26, 2005,
http://www.wsws.org/articles/2005/oct2005/pbs-o26.shtml [hereinafter Laurier, Rumsfeld’s
Role] (quoting Mark Danner, author of MARK DANNER, TORTURE AND TRUTH: AMERICA, ABU
GHRAIB AND THE WAR ON TERROR (2004): “What probably is very new, and new with the war
on terror, is that there exists now documentary evidence, including documents from the Department of Justice lawyers themselves, talking about these procedures and, in effect, approving them.”).

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reports of torture or to search for smoking-gun proof of official intent to
engage in torture. For our purposes, it is sufficient that abuse and torture
have historically occurred where administrative detentions were resorted to.
One would have thought that, if not Vietnam, World War II would have
taught us this lesson. One would have thought that a nation which was in
large part responsible for the rescue of tens of thousands of Concentration
Camp survivors and was a judicial participant in one of the most significant
war crimes tribunals in history, the Nuremburg trials, would know better.
How American officials could justify the detention camps in Vietnam,
knowing about the torture and murders of innocents in them, after having
witnessed Hitler’s internment camps and learned of the horrors he perpetrated in them, is an unanswered question. But, after the revelations of Vietnam—which all came out in congressional hearings in 197125 that led to
both the repeal of the EDA and ultimately by degrees to “reforms” of the
CIA’s Phoenix Program, contributing to the end of that protracted War—
Section 412 and Bush’s Military Commissions and unlawful enemy combatant designations are inexcusable
There are certainly many more comparisons that could be made to
the present detention situation but they are beyond the scope of this article.26
25

U.S. Assistance Programs in Vietnam: Hearings Before a Subcomm. of the House
Comm. on Gov’t Operations, 92nd Cong. 176 (1971) (statement of William E. Colby, U.S.
Ambassador to Vietnam and Deputy to the Commander for Civil Operations and Rural Development Support, Vietnam), available at http://homepage.ntlworld.com/jksonc/docs
/phoenix-hcgo-19710719.html [hereinafter Colby Statement]; The Geneva Conventions and
the Phoenix Program; in U.S. Assistance Programs in Vietnam: Hearings Before Foreign
Operations and Government Information S. Comm. of the H. Comm. on Gov’t Operations,
92nd Cong., 1st Sess. 217-18 (1971) (attached to statement by William Colby, U.S. Ambassador to Vietnam and Deputy to the Commander for Civil Operations and Rural Development, Vietnam), available at http://homepage.ntlworld.com/jksonc/docs/phoenix-hcgo19710719.html [hereinafter Geneva Memo].
26
For example, comparisons could be made to present-day detention camps in Israel, the
Gulag in the Soviet Union during the Cold War, Concentration Camps in Germany during
World War II, extrajudicial detentions in South America during American involvement in
those countries, among others. For U.S. involvement in foreign detentions and torture, see
generally Christopher Hitchens, The Case Against Henry Kissinger, HARPER’S MAG., Feb. &
Mar., 2001, available at http://www.thirdworldtraveler.com/Kissinger/CaseAgainst1_Hitche
ns.html and http://www.thirdworldtraveler.com/Kissinger/CaseAgainst2_Hitchens.html. See
also E-mail from Jennifer Van Bergen to Bernard V. Kleinman, Attorney (Mar. 5, 1999,
14:09:43 EST) [hereinafter JVB, Toscanino Cases], available at http://jvbline.org/tosc anino.pdf (making comments entitled “My Comments on the “Toscanino Cases”—Defendants’
Failure to Prove Allegations” and discussing situations in which courts may decline adjudication where U.S. involvement in detention and torture by foreign power shocks the conscience); E-mail from Jennifer Van Bergen to Bernard V. Kleinman, Attorney (Mar. 3, 1999,
14:38:05 EST) [hereinafter JVB, US Nonresponsibility], available at http://jvbline.org/exce
ptions.pdf (making comments entitled “The Exceptions to the Doctrine of US Nonresponsibility for Foreign Police Acts” and detailing four situations under which U.S. courts hold
U.S. officials responsible for torture during detentions by foreign powers).

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Here we wish merely to raise similarities between current administrative
detention policies and those used in Vietnam. We believe that our conclusions reveal crucial buried truths about administrative detentions that deserve to be fully vetted and considered in the light of day in order to prevent
the same horrors that occurred in Vietnam. We hope that this paper will
point the way for Congress to reconsider the legality and advisability of
permitting administrative detention in any guise.
II. THE WAR ON TERROR DETENTION CENTERS
Before beginning our comparison of detention programs used in the
Vietnam War with those used in the War on Terror, we would like to note a
few similarities and differences between these conflicts and pinpoint the
different types of detention centers now in use.
The Vietnam War was similar to the “War on Terror” in several respects. In both cases, our enemy was/is vastly outgunned and could
not/cannot win main force military battles. The enemy resorts to guerilla
warfare tactics and attempts to win victories primarily on the political and
psychological fronts. But unlike the Vietnam War, which was fought entirely within one foreign country, the War on Terror is spread around the
globe. Therefore, our focus is on the locations of American detention centers in the present war. We identify four primary known detention locations:
Guantanamo, Iraq, Afghanistan, and the United States. We consider only
Guantanamo, Iraq, and the U.S. in this paper.27
Each of these situations involves different circumstances and combatants. The three detained U.S. citizens are in military brigs in the U.S.28
Jose Padilla was being held on a material witness warrant when Bush decided to designate him an “unlawful enemy combatant” and detain him indefinitely.29 Ali Saleh Kahlah al-Marri was indicted on charges of credit
27
With respect to Iraq, we focus primarily on the period leading up to the revelations of
torture and abuse at Abu Ghraib prison in Baghdad. We also do not discuss the CIA “Black
Sites.” See Priest, supra note 19 (“Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about
whether they should be detained or for how long.”). Priest also discusses concerns about
torture at these sites. Id. See also Friends Comm. of Nat’l Legislation, Torture Will be Conquered by the Rule of Law, FRIENDS COMMITTEE OF NAT’L LEGIS., Aug. 24, 2005,
http://www.fcnl.org/civil_liberties/torture.htm [hereinafter FCNL, Torture].
28
Human Rights First, “Enemy Combatants" in the United States, http://www.humanrig
htsfirst.org/us_law/detainees/enemycombatants.htm. Padilla was recently released from
military custody and transferred to the custody of civil authorities to be tried on criminal
charges. See Jay Weaver, Padilla Swoops into Miami Court, MIAMI HERALD, Jan. 6, 2006,
available at http://www.miami.com/mld/miamiherald/news/13562373.htm.
29
See Jennifer Elsea, Detention of American Citizens as Enemy Combatants, CRS REP.
FOR CONGRESS, at CRS-6 (Feb. 24, 2005), available at http://www.fas.org/sgp/crs/misc/
RL31724.pdf [hereinafter Elsea, Detention of American Citizens].

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card fraud and lying to the FBI, but was subsequently declared an unlawful
enemy combatant by Bush.30 Yasser Hamdi was captured in Afghanistan
and when it was learned he was a U.S. citizen, was transferred to a military
brig in the U.S. and held as an unlawful enemy combatant.31 No part of the
screening procedures used in these designations, as we shall see, accorded
minimal human rights guarantees under the U.S Constitution or international law, including the laws of war. No substantive information has been
released relating to the treatment of these prisoners, although we know that
all have been held in isolation and interrogated extensively.
The Guantanamo detainees were captured in Afghanistan at the outset of U.S. military operations there in direct response to September 11th.
These persons were presumably captured on the battlefield32 (although some
have claimed they were not engaged in combat), “screened” by an unknown
process by combat units (undoubtedly supervised by the CIA), and shipped
to Guantanamo. Initial detaining and screening units evidently determined
these individuals to be loyal to Al Qaeda or the Taliban. All were declared
enemy combatants by President Bush.33 None were given combatant status
review hearings until two years after their capture and several months following the Supreme Court rulings that required them. Of the approximately
550 detainees remaining at Guantanamo, only fifteen have been deemed
eligible for trial by military tribunals.34 While we discuss the screening and
30

CollegeFreedom.com,
The
Ali
Saleh
Kahlah
al-Marri
Case,
http://collegefreedom.org/marri.htm; Press Release, U.S. Attorney's Office for the Cent. Dist.
of Ill., West Peoria Man Charged in Central Illinois with Making False Statements in Investigation of September 11th Terror Attacks (May 22, 2003), available at
http://www.usdoj.gov/usao/ilc/press/2003/may/052203almarri.html; Human Rights First, In
the Courts: Ali Saleh Kahlah al-Marri, Qatari Student, http://www.humanrightsfirst.org/
us_law/inthecourts/supreme_court_al_marri.htm.
31
See Elsea, Detention of American Citizens, supra note 29, at CRS-3-4; U.S. Citizens
with Alleged Links to Al Qaeda, HUMAN RIGHTS FIRST, at 4, available at
http://www.humanrightsfirst.org/us_law/after_911/PDF/U.S.%20Citizens%20with%20Alleg
ed%20Links%20to%20Al%20Qaeda.pdf.
32
It is not entirely clear where “the battlefield” is in the War on Terror. It appears that
immediately following September 11th, the entire country of Afghanistan was considered the
battlefield. Similarly, in the present war in Iraq, it appears the entire country is viewed as the
battlefield. In terms of protection under the Geneva Conventions, location of the battlefield
does matter, as combatants captured on the battlefield or in the combat arena are generally
considered Prisoners Of War. See Geneva Convention Relative to the Treatment of Prisoners
of War art. 4, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
33
See Jennifer Elsea, Detainees at Guantanamo Bay, CRS REP. FOR CONGRESS, at CRS-2
(July 20, 2005), available at http://www.fas.org/sgp/crs/natsec/RS22173.pdf [hereinafter
Elsea, Guantanamo Detainees].
34
See Jennifer Elsea, The Department of Defense Rules for Military Commissions: Analysis of Procedural Rule and Comparison with Proposed Legislation and the Uniform Code of
Military Justice, CRS REP. FOR CONGRESS, at CRS-1 (Jan. 18, 2005), available at
http://www.fas.org/irp/crs/RL31600.pdf [hereafter Elsea, DOD Rules for MCs]; Jennifer

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tribunal procedures below, the exact criteria used to select these fifteen is
unknown. Those who are not scheduled for military tribunal hearings remain in indefinite detention. Torture has been documented at Guantanamo.35
The third category of detainees discussed herein are those taken in
the Iraq invasion. These persons are not associated with the September 11th
attacks. They are fugitives from Saddam Hussein’s regime, or “insurgents”
fighting American occupation. They may or may not be opposed to the
United States, other than as an occupying force, and they may not have been
previously engaged in a jihad. The photographs of abusive treatments of
prisoners at Abu Ghraib in Baghdad graphically revealed torture.
There are other detention centers, known and unknown, in the War
on Terror.36 However, we focus here on Guantanamo, Iraq, and the U.S. .
III. THE PHOENIX PROGRAM AND THE WAR ON TERROR
A. “Laws” and Themes
In June 1967, the CIA launched a screening, detention, and interrogation program in Vietnam that was a major building block of what eventually became known as “the Phoenix Program.”37 By the end of the Vietnam
War, Phoenix had become notorious for its paramilitary death squads,
which claimed between 20,000 (according to the CIA) and 40,000 (according to the South Vietnamese) lives.38
Seldom, however, has Phoenix been recognized for the huge detention and interrogation facet that enabled the CIA to compile computerized
blacklists of suspected terrorists. As in Iraq (and the unknown “black sites”
where so-called “ghost detainees” are held),39 where the U.S. does not keep
Elsea, Treatment of “Battlefield Detainees” in the War on Terrorism, CRS REP. FOR
CONGRESS, at CRS-3 (Jan. 13, 2005), available at www.fas.org/irp/crs/RL31367.pdf [hereafter Elsea, Battlefield Detainees].
35
Dunham, supra note 19 (“Men who have been released from Guantanamo have stated
they were tortured there. The [ICRC] last year accused the U.S. military of using tactics
‘tantamount to torture’ on Guantanamo prisoners. An FBI agent wrote in a memo that became public last year that Pentagon interrogators used ‘torture techniques’ at Guantanamo.”).
36
FCNL, Torture, supra note 27 (noting that “detention facilities stretching from South
Asia to Iraq to Guantanamo, those known to the world and those which are shrouded in complete secrecy, are lawless enclaves”); Priest, supra note 19 (reporting detention centers called
“black sites” operated by CIA “in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe”).
37
VALENTINE, supra note 1, at 13.
38
Id. at 378 (noting 26,843); Colby Statement, supra note 25, at 191, 236 (noting 20,587);
RALPH MCGEHEE, CIA AND OPERATION PHOENIX IN VIETNAM 66-73 (1996) (noting United
States 20,857 and Vietnam 40,994).
39
See Priest, supra note 19; FCNL, Torture, supra note 27.

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track of civilian deaths, it is not known how many innocent people were
caught in the Phoenix dragnet. It is only known that Phoenix led to the torture and murder of many, possibly thousands of innocent Vietnamese people.
The basis for the screening, interrogation, and detention aspect of
Phoenix was established in 1956, when the fledgling Government of Vietnam issued Ordinance 6, which provided for the administrative detention of
“security offenders.”40 Ordinance 6 was succeeded by several Decree-Laws
and Ministerial orders, the most significant being the 1965 “Emergency
Decree Law 3/65.”41 This law provided for “administrative detention of
persons considered dangerous to the national security, without court hearing.”42 The detention orders were referred to as “An Tri.”
Today, the War on Terror has engendered three American detention
“laws”43 to deal with the new enemy of the twenty-first century. These resemble An Tri detentions in numerous and various ways as discussed in the
next section and the remainder of this paper. These “laws” are: Section 412
of the PATRIOT Act, which provides for mandatory indefinite detention of
aliens considered dangerous to national security,44 the presidential Military
Order of November 13, 2001 (and the accompanying Military Commissions
procedures),45 and the presidential designations of so-called “unlawful enemy combatants.”46
Through his Military Order, Bush granted himself extraordinary
powers to identify al Qaeda members and those who harbor them, and to
detain these people without review by the judicial or legislative branches of
government.47 The subsequent Department of Defense Military Commis40
ROBERT G. HARPER, HANDBOOK ON GVN NATIONAL SECURITY LAWS AND PROCEDURES:
HANDLING OF CIVILIAN SECURITY SUSPECTS 16-17 (1971) in Memorandum from Robert Starr
to William Colby, Ambassador (July 16, 1971) (on file with author in DV Collection, An Tri
folder, 1971) [hereinafter HARPER, HANDBOOK].
41
Criminal Justice and the Court System in the Republic of Vietnam, in LOUISIANA STATE
UNIVERSITY SCHOOL OF LAW, THE ADMINISTRATION OF JUSTICE IN THE REPUBLIC OF VIETNAM
43 (1971) [hereinafter Justice in Vietnam].
42
Id.
43
Only one of these “laws” is actually a statute: the USA PATRIOT Act. Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered
sections of 8, 15, 18, 22, 31, 42, 49 and 50 of the United States Code).
44
Id. § 412 (codified at 8 U.S.C.S. § 1226a (2005)).
45
Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain NonCitizens in the War Against Terrorism, 3 C.F.R. 918 (2001).
46
See Elsea, Battlefield Detainees, supra note 34, at CRS-2. For a general discussion of
“unlawful belligerents” see id. at CRS-19. See also Elsea, Detention of American Citizens,
supra note 29, at CRS-1-2.
47
3 C.F.R. 918.

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sions Order No. 1 (“MCO”) was the “enabling law” that put the Military
Order into effect.48 Finally, there came Bush’s “unlawful enemy combatant”
(“UEC”) designations of United States citizens,49 designations not based on
his Military Order but potentially triable under the MCO.
In addition to the lack of due process, the main theme of these laws
is overarching executive power. In none of them are the incarcerations judicially imposed or based on proof of criminal activity that would be admissible in a court of law. In each, an official of the Executive Branch has nearcomplete unilateral authority to determine who is detained and for how
long. Those held under Section 412 are subject to periodic review by the
Attorney General and his determinations are appealable only to the United
States Court of Appeals for the District of Columbia.50 Those subject to the
Military Order may not appeal to any court of law, including international
courts.51 The Administration claimed that those held under Bush’s unlawful
enemy combatant designations had neither due process nor habeas corpus
rights.52
More than anything else, it is this theme of near-absolute, unreviewable executive authority that has the potential to bring Phoenix home to
roost.
It is worth noting here that administrative detentions, in addition to
being a means of obtaining intelligence about and a method of containment
of an unpredictable and dangerous enemy, are also a method of power retention by the detaining power. Furthermore, while every U.S. administration
that has enacted administrative detention laws or otherwise resorted to internments has claimed it does so for extraordinary reasons, neither the
methods of these detentions nor the types of persons detained are substantially different from one administration to the next. There is always enough
of an emergency to justify administrative detentions. Again, administrative
detentions apply, by definition, in national emergency situations to those
considered dangerous to the national security.53
48

U.S. Dep’t of Def., Military Commission Order No. 1: Procedures for Trials by Military
Commissions for Certain Non-United States Citizens in the War Against Terrorism, 32
C.F.R. 9.1-9.12 (2004).
49
See supra note 49.
50
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, § 412, 115 Stat. 272, 350-53
(2001) (codified at 8 U.S.C.S. § 1226a (2005)).
51
Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain NonCitizens in the War Against Terrorism, 3 C.F.R. 918 (2001).
52
See supra note 49; Elsea, Guantanamo Detainees, supra note 33, at CRS-1.
53
See, e.g. Alien Act, ch. 66, 1 Stat. 577 (1798) (providing for detention and removal of
“alien enemies” during declared hostilities or threatened hostilities); Exec. Order No. 9066, 7
Fed. Reg. 1407 (Feb. 19, 1942) (providing for exclusion, and ultimately detention, of Japanese persons from West Coast areas to protect against espionage and sabotage to national

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defense materials, premises, and utilities); Emergency Detention Act of 1950, 50 U.S.C. §§
811-26 (1970) (repealed 1971) (providing for detentions of persons whom the Attorney
General believed might commit espionage or sabotage, during an invasion, war, or “internal
security emergency”). Cf. Act for the Punishment of Certain Crimes Against the United
States, ch. 74, 1 Stat. 596 (1798) (criminalizing opposition to and insurrection against the
government and the publication of scandalous and malicious writings against the U.S.); An
Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United
States, ch. 5, 2 Stat. 451 (1807); Act . . . to punish Espionage . . . (Espionage Act), ch. 30, 40
Stat. 217 (1917) (codified as amended in 18 U.S.C. §.793) (criminalizing, inter alia, ”communication of national defense information to persons not entitled to receive it” with up to
ten years imprisonment); Act to Protect the United States Against Certain Un-American and
Subversive Activities . . . (Subversive Activities Control Act), ch. 1024, 64 Stat. 987 (1950),
repealed by Friendship Act, Pub. L. 103-199, § 803, 107 Stat. 2317, 2329 (1993); Trading
with the Enemy Act, Pub. L. No. 65-91, § 16, 40 Stat. 411, 425 (1917) (providing for up to
ten years imprisonment); International Emergency Economic Powers Act, Pub. L. No. 95223, §§ 201-08, 91 Stat. 1625, 1626 (1977) (codified as amended in 50 U.S.C. §§ 1701-06).
See also Robert M. Chesney, The Sleeper Scenario: Terrorism-Support Laws and the Demands of Prevention, 42 HARV. J. ON LEGIS. 1, 4 (2005), available at
http://www.law.harvard.edu/students/orgs/jol/vol42_1/chesney.php (“America's terrorismsupport laws have evolved out of the more general category of laws enabling the executive
branch to use economic sanctions or embargoes as instruments of foreign policy and national
security, a practice traceable to the earliest days of the republic.”). For relevant cases see, Ex
parte Quirin, 317 U.S. 1, 37 (1942) (describing the “German saboteurs case”—finding that
citizens could be deemed “enemy belligerents”); In re Territo, 156 F.2d 142, 145 (9th Cir.
1946) (Stephens, J., dictum) (deciding that a citizen may be detained as a belligerent) (“In
war, all residents of the enemy country are enemies.”); Ex parte Milligan,71 U.S. 2, 127
(1866) (finding that U.S. citizen saboteur against the Northern states during Civil War may
not be tried as a belligerent in military tribunal while civil courts function); Id. at 21 (The
government argued: “[I]f the military tribunal has no jurisdiction, the petitioner may be held
as a prisoner of war, aiding with arms the enemies of the United States, and held, under the
authority of the United States, until the war terminates”); Moyer v. Peabody, 212 U.S. 78
(1909) (denying relief in damages suit against Colorado governor for detention during a
miners’ strike declared an insurrection); Id. at 84-85 (“Such arrests are not necessarily for
punishment, but are by way of precaution, to prevent the exercise of hostile power.”); Korematsu v. U.S., 323 U.S. 214, 218 (1944) (upholding exclusion of persons who “constituted a
menace to the national defense and safety” and could “be isolated and separately dealt
with”); In re Yamashita, cert. denied, 327 U.S. 1 (1946) (upholding validity of military commission to try Japanese commander after cessation of hostilities—commander was detained,
tried, convicted, and executed); Johnson v. Eisentrager, 339 U.S. 763 (1950) (upholding the
jurisdiction of military authorities, during or following hostilities, to punish those guilty of
offenses against the laws of war; denying to German defendants the right to a writ of habeas
corpus). See also Haitian Centers Council, Inc., v. McNary, 969 F.2d 1326, 1330 passim (2d
Cir. 1992) (determining constitutionality of interdiction and screening program for Haitian
refugees detained in Guantanamo, where due process and legal representation had been withheld from refugees); JVB, Toscanino Cases, supra note 26; JVB, US Nonresponsibility,
supra note 26; DAVID BURNHAM, ABOVE THE LAW: SECRET DEALS, POLITICAL FIXES, AND
OTHER MISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE 282-314 (1996) (describing
cases in different periods of American history brought “In the Name of National Security”).

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B. How Phoenix Evolved54
Before comparing the current laws to those under the Phoenix Program, we need to see what Phoenix was and how it came about. During the
Vietnam War, the Phoenix Program coordinated the paramilitary and intelligence components of some two-dozen counterinsurgency programs in an
attempt to "neutralize" the “Vietcong infrastructure” (“VCI”).55 The euphemism "neutralize" meant to kill, capture, make to defect, or turn members of
the “infrastructure” into double agents.56 The word "infrastructure" referred
to civilian members of the “shadow government” that was managing the
insurgency in South Vietnam.57 In other words, the Vietcong or VCI.
Members of the infrastructure were referred to as “national security
offenders” no matter what their ideology; but if they were members of the
Communist Party, they were also referred to as “Communist Criminals,”
insofar as Communism had been outlawed and was a separate crime of
status.58 Screening virtually everyone in South Vietnam, and then detaining
and interrogating suspects, was the systematic way the CIA sought to identify members of the VCI.59
While no extant copy of Emergency Decree 3/65 has been located,
a later renewal of the law, issuing from the State Department’s Agency for
International Development, “continues the emergency power of the Executive [of Vietnam] to temporarily detain people considered to constitute a
danger to the National Security by publicizing or carrying out Communism
in any form.”60 Temporarily meant two years, renewable “if the offender is
considered still to constitute a danger.”61
54
Where not otherwise referenced, this section draws heavily on VALENTINE, supra note 1,
at 1 passim, and on Valentine’s notes. See generally TheMemoryHole.org, Documents from
the Phoenix Program: Supplied and Introduced by Douglas Valentine,
http://www.thememoryhole.org/phoenix/.
55
See VALENTINE, supra note 1, at 13.
56
Id.
57
Id. See also Attack Against VC Infrastructure, THEMEMORYHOLE.ORG, Nov. 22, 1966,
available at http://www.thememoryhole.org/phoenix/attack-against.pdf [hereinafter Attack
Against VC Infrastructure].
58
D. E. BORDENKIRCHER, TIGER CAGE: AN UNTOLD STORY 48-49 (1998). See also infra
note 104.
59
VALENTINE, supra note 1, at 154. See also Attack Against VC Infrastructure, supra note
57.
60
Emergency Detention Law art. 1 (1970) (S. Vietnam), attachment to letter of [Ambassador] William E. Colby to Prime Minister Tran Thien Khiem (Oct. 12, 1970) (on file with
author in DV Collection, An Tri Folder, 1970).
61
Id. Later suggested revisions called for six month periods, but these revisions were
never put into effect. Memorandum from Ray A. Meyer, Memorandum for Record: An Tri
Observation and Recommendations 3 (Sept. 26, 1972) [hereinafter Meyer, Memo] (on file
with author in DV Collection, An Tri Folder, 1972). Meyer worked for “MACCORDS” or

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Screening, detaining, and interrogating suspects was also how the
CIA produced informants, defectors, and double agents.62 Capture of VCI
was the object. But VCI of “high value” (a Phoenix term recently exhumed
by the CIA and used in the War on Terror and in Iraq63), were usually accompanied by bodyguards, so midnight assassinations and ambushes of
high value VCI was the most common form of exploitation of the intelligence gathered through informants, defectors, double agents, and interrogations.64
Under the An Tri administrative detention emergency decree, due
process was totally non-existent for suspected members of the VCI.65 People whose names appeared on Phoenix blacklists were subject to midnight
arrest, kidnapping, torture, indefinite detention, or assassination, simply on
the word of an anonymous informer.66 After capture and interrogation, if
they were still alive, they were tried by “special courts” or military tribunals
not unlike those proposed by Bush that were not staffed by legally trained
judges.67 As one official document noted: “In the Special Courts which act
in terms of special laws, criminal procedures are reduced to a strict minimum.”68 There was “no preliminary investigation although the offense is of
a criminal nature” and no appeal.69 The judges could not “pronounce extenuating circumstances, suspend action, nor punishment under the set
minimum.”70 As a result, “the principle of individualization of punishment

the Civil Operations and Revolutionary Development Support (CORDS) group, established
in May 1967 under Military Assistance Command, Vietnam (MACV), to coordinate U.S.
military and civilian operations and advisory programs in South Vietnam. MACV was a
unified command under the Commander in Chief, Pacific, managing the U.S. military effort
in South Vietnam. See VALENTINE, supra note 1, at 441, 444.
62
Interviews by Douglas Valentine with Evan Parker, Nelson Brickham et al., Senior CIA
Officers.
63
See Seymour M. Hersh, The Gray Zone: How a Secret Pentagon Program Came to Abu
Ghraib, NEW YORKER (May 24, 2004), available at http://www.newyorker.com/fac
t/content/?040524fa_fact; CNN.com, Conflicting Reports Over Iraq Release (Sept. 22, 2004),
http://www.cnn.com/2004/WORLD/meast/09/22/iraq.female.prisoners/ (last visited Apr. 14,
2006)
64
VALENTINE, supra note 1, at 104. See also Attack Against VC Infrastructure, supra note
57.
65
VALENTINE, supra note 1, at 13. See also HARPER, HANDBOOK, supra note 40.
66
VALENTINE, supra note 1, at 13.
67
HARPER, HANDBOOK, supra note 40.
68
Justice in Vietnam, supra note 41, at 43. Portions of this document appear to quote from
the Handbook on GVN National Security Laws. See HARPER, HANDBOOK, supra note 40.
69
Id.
70
Id.

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cannot apply, which is in flagrant contradiction with the concept of justice
and responsibility.”71
Legally unobstructed by the concepts of justice and legal responsibility, the CIA was the hidden force behind Decree 3/65 and its special
courts, just as it was the hidden force behind the Phoenix Program. Likewise, the CIA is one of the hidden forces behind the reconstruction of Iraq’s
Ministry of Interior, secret police forces, and judicial system, and the interrogations of detainees at various detention centers.72
To escape responsibility and ensure “plausible deniability,” the CIA
in Vietnam concealed the detention aspect of Phoenix under cover of the
U.S. military/civilian administration in charge of the reconstruction of South
Vietnam.73 The Vietnamese army and police Special Branch, along with
U.S. military forces, provided the bulk of manpower and facilities used to
“screen” detainees for the CIA, in the same way the CIA and military intelligence today train locals to apply Pentagon-mandated procedures to screen
terrorist suspects abroad and maintain military control of prisons in Iraq and
Afghanistan.74
The CIA built Phoenix operations centers in each of South Vietnam’s 240 districts, in order to secretly identify and neutralize VCI.75 Often,
the CIA relied on the type of heavy-handed military sweeps now being conducted in Iraq.76 These sweeps invariably filled makeshift detention centers
(barbed wire cages with tin roofs) with innocent old men, women and chil71

Id. (quoting “a Saigon lawyer”).
See ACLU, U.S. Killed Detainees, supra note 19 (reporting that documents obtained by
the ACLU “show that detainees died during or after interrogations by Navy Seals, Military
Intelligence and “OGA” (Other Governmental Agency)—a term . . . that is commonly used
to refer to the CIA.”); GEORGE R. FAY, MAJOR GEN., U.S. DEP’T OF THE ARMY, ARMY
REGULATION 15-6 REP., INVESTIGATION OF THE ABU GHRAIB DETENTION FACILITY AND 205TH
MILITARY INTELLIGENCE BRIGADE 9 (2004), available at http://www.defenselink.mil/news
/Aug2004/d20040825fay.pdf [hereinafter FAY, INVESTIGATION] ("The term Other Government Agencies (OGA) most commonly referred to the Central Intelligence Agency (CIA).
The CIA conducted unilateral and joint interrogation operations at Abu Ghraib. The CIA’s
detention and interrogation practices contributed to a loss of accountability and abuse at Abu
Ghraib. No memorandum of understanding existed on the subject interrogation operations
between the CIA and CJTF-7, and local CIA officers convinced military leaders that they
should be allowed to operate outside the established local rules and procedures."). See also
Priest, supra note 19. Note also Vice President Cheney’s recent request to have the CIA
exempted from a bill prohibiting torture. See R. Jeffrey Smith & Josh White, Cheney Plan
Exempts CIA From Bill Barring Abuse of Detainees, WASH. POST, Oct. 25, 2005, at A1,
available at http://www.washingtonpost.com/wpdyn/content/article/2005/10/24/AR200510
2402051.html?nav=rss_politics.
73
VALENTINE, supra note 1, at 116.
74
Id. at 123.
75
Id.
76
Id. at 123.
72

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dren, since the actual VCI had penetrated the government’s military and
police security services and often knew when the sweeps were coming.77 As
in Iraq today, active insurgents were often better able to evade capture than
innocent persons.78
By its own admission, the CIA had no effective procedure of distinguishing actual “national security violators” from innocent people79—an
innocent person perhaps being, for example, a rival businessmen being
blackmailed by the local Province Chief.
In all, the interrogation and detention centers there had substandard
living conditions and indiscriminate crowding of POWs, common criminals,
and VCI suspects.80 There was no way of knowing who should be interrogated, jailed, or released.
Like the administrative detentions under the PATRIOT Act and
Bush’s Military Order, the Vietnamese-staffed military tribunals and security committees that heard cases could repeatedly delay someone's “trial.”81
An Tri hearings could be delayed for up to two years or more—usually until
the proper bribe was paid.82 When brought to trial, a person was unlikely to
have a lawyer, which did not really matter, as there was no due process, no
habeas corpus, and no need of evidence to convict.83
The CIA, as ever, was content to ignore the massive human suffering caused by its blanket civilian detention program. After all, the Vietnamese were poor, dark-skinned Buddhists, not Christians or Jews, just as the
vast majority of detainees in Iraq are poor and dark-skinned, and not Christians or Jews. But the CIA’s abuses could not be hidden forever and eventually pressure from the Red Cross and liberal American Congresspersons
forced the CIA to confront the same legal questions about detainees and
“enemy combatants” (a designation that implies guilt before any is proven)
that are now finally being raised in Bush’s War on Terror.84

77

Id. at 151.
Id.
79
Similarly, intelligence officers that have interrogated terrorist suspects in the present
War on Terror have admitted that large numbers of detainees are innocent. See Laurier,
Rumsfeld’s Role, supra note 24 (“Another retired interrogator, Roger Brokaw, worked in Iraq
for six months in 2003 and estimates that only two percent of the people he talked to were
dangerous or belonged to an insurgency.”); FCNL, Torture, supra note 27 (“The International Committee of the Red Cross reported that coalition intelligence officers themselves
conceded that 70% - 90% of the detainees in Iraq are being held by mistake.”).
80
VALENTINE, supra note 1, at 151.
81
Id. at 220. See also HARPER, HANDBOOK, supra note 40.
82
VALENTINE, supra note 1, at 292. See also HARPER, HANDBOOK, supra note 40.
83
VALENTINE, supra note 1, at 293. See also HARPER, HANDBOOK, supra note 40.
84
VALENTINE, supra note 1, at 377.
78

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IV. DETENTIONS UNDER PRESENT-DAY FEDERAL LAW
A. U.S.A. PATRIOT Act: Codifying Administrative Detentions
The detention provision of the PATRIOT Act added a provision to
the Immigration and Nationality Act (INA), mandating that the Attorney
General “shall take into custody any alien who is certified” by him.85 Earlier
immigration law allowed for continued detention only when an alien was a
danger to the community or flight risk.86
An alien may be certified if the Attorney General “has reasonable
grounds to believe” that the alien has engaged in any one of a great number
of listed prohibited activities.87 The problem, of course, is that here, just as
in the An Tri procedures, there is only limited judicial review of these certifications.88
Once an alien is certified, “the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. . . .
irrespective of any relief from removal for which the alien may be eligible.”89 While Section 412 requires that an alien who has not been removed
or charged with a crime within seven days “shall [be] release[d],”90 a person
“whose removal is unlikely in the reasonably foreseeable future, may be
detained for additional periods of up to six months . . . if the release of the
alien will threaten the national security of the United States or the safety of
the community or any person.”91 The Attorney General “shall review” the
certification every six months.92

85

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, § 412(a)(1), 115 Stat. 272,
350-53 (2001) (codified at 8 U.S.C.S. § 1226a (2005)) (emphasis added) (amending the
Immigration and Nationality Act § 236).
86
See Zadvydas v. Davis, 533 U. S. 678 (2001); Demore v. Kim, 538 U.S. 510 (2003).
87
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 § 412(a)(3).
88
An immigration or federal court may, of course, review whether individuals have met
these criteria where a case comes before their courts, but the certification process itself is
administrative, which usually garners judicial deference. See Anita Ramasastry, Indefinite
Detention Based Upon Suspicion: How The Patriot Act Will Disrupt Many Lawful Immigrants’ Lives, FINDLAW, Oct. 5, 2001, http://writ.news.findlaw.com/commentary/
20011005_ramasastry.html (“According to the Act, the court may review the factual basis of
the certification. But that is not particularly comforting, since the grounds for certification
are broad and vague . . . .”).
89
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 § 412(a)(2).
90
Id. at § 412(a)(5).
91
Id. at § 412(a)(6).
92
Id. at § 412(a)(7).

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The result, of course, as with the An Tri detentions, is that “[b]y the
use of repeated extensions a suspect can be detained indefinitely” without
ever having any sort of genuine due process hearing.93
One in-depth legal analysis of Section 412 concludes that “[b]y denying noncitizens the opportunity for meaningful review of the certification
decision, and by authorizing detention of aliens on substantively inadequate
grounds, [Section 412] raises serious constitutional concerns under both the
procedural and substantive prongs of the Due Process Clause.”94 The author,
Shirin Sinnar, notes that while Section 412 provides for habeas corpus review, “it is not clear whether a court reviewing a habeas petition could examine the factual basis for a certification decision.”95 In other words, “[i]f
there were enough evidence for a prima facie finding that reasonable
grounds existed for the government’s determination, then it might not be
possible for an alien to argue on habeas that he actually had no connection
with terrorism or presented no threat to national security.” 96
Thus, while the Justice Department claims that Section 412 requires
“extensive judicial supervision” and “expressly grants aliens the right to
challenge their detention in court,”97 and while, as Sinnar observes, “under
the statute, habeas review appears to offer the alien an opportunity for judicial review,” Sinnar adds that “in practice that protection may not amount to
a meaningful hearing.”98
The Department of Justice states that “it has not proven necessary to
use section 412 . . . because traditional administrative bond proceedings
have been sufficient . . . .”99 This raises the question: why, then, does the
statute need to be on the books?
In any event, perhaps because of its disuse or because it applies
only to aliens, Americans have not paid much attention to Section 412. Its
purpose is to keep terrorists out of the United States. Made-in-America terrorists like Timothy McVeigh remain unimpeded by this law. If a few innocent aliens get caught in the dragnet, we feel it is a price worth paying for
public safety.
What we do not yet realize is that the precedents set by the
PATRIOT Act administrative detentions of aliens not only could be ex93

Justice in Vietnam, supra note 41, at 44.
Shirin Sinnar, Note, Patriotic or Unconstitutional?: The Mandatory Detention of Aliens
Under the USA Patriot Act, 55 STAN. L. REV. 1419, 1421 (2003).
95
Id. at 1434.
96
Id. at 1435.
97
U.S. Department of Justice, The USA Patriot Act: Myth vs. Reality,
http://www.lifeandliberty.gov/subs/add_myths.htm#s412.[hereinafter DOJ, Myth vs. Reality].
98
Sinnar, supra note 94, at 1435.
99
DOJ, Myth vs. Reality, supra note 97.
94

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panded to include citizens, but already have been—by the President’s
unlawful enemy combatant designations, discussed below. The concern is
not that a few innocent aliens may be indefinitely detained but that this
could lead to the indefinite administrative detention of anyone who criticizes the government.
Moreover, the troubling codification of indefinite administrative detentions in Section 412 is made worse by the fact that the feeder provisions
that define to whom and in what contexts administrative detentions apply
are incredibly convoluted and confusing.100
The crimes under the national security laws of the Republic of
Vietnam during U.S. occupation are ominously similar to those under the
alien terrorism provisions of the PATRIOT Act. Both sets of laws were intended to address acts that threaten the public safety and/or national security101 but neither provided for criminal prosecution, procedural due process,
or Sixth Amendment-type protections. Both involved indefinite detentions.
Of course, the similarities between the laws are understandable
when one thinks about the similarities between the two situations: the
Communist insurgency in South Vietnam and the global terrorist “insurgency” against the United States. A U.S.-Vietnamese handbook on national
security laws noted: “The basis for the various emergency enactments and
for special punishments and procedures lies in declarations of National
Emergency and of war.”102 The An Tri procedures incorporated a clause
stating: “The law is automatically ineffective at the end of the State of War
or Emergency.”103
100

See infra Appendix B (listing persons subject to 412 certification); Jennifer Van Bergen,
In the Absence of Democracy: The Designation and Material Support Provisions of the AntiTerrorism Laws, 2 CARDOZO PUB. L. POL’Y & ETHICS J. 107, 116-19, 144-45 (2003) (discussing interplay and circularity of terrorism definitions); Advisory Comm. to the Cong. Internet
Caucus,
Terrorism
Legislation
Comparison,
http://www.netcaucus.org/books/
surveillance2001/docs/EFF_Leg_Compare_Chart.pdf. For example, the Attorney General
may certify an alien who is a member of a foreign terrorist organization, designated such by
the Secretary of State, if the alien knows or should know that it is a terrorist organization.
Note the reliance of certification on an already existing designation, neither of which are
subject to any meaningful judicial review. Further, the Attorney General may certify an alien
who uses his prominence to endorse terrorist activity in a way that undermines U.S. efforts to
reduce or eliminate terrorism. This is extremely broad.
101
HARPER, HANDBOOK, supra note 40, at 5-10 (listing “Offenses Against National Security” including treason, sedition, espionage, sabotage, acts of insurgency, revolt, acts directed
against defense or government facilities, bearing arms against, undermine morale, etc.). Id. at
10-14 (reporting that Civil Security Suspects could be screened and detained indefinitely). Id.
at 6-8 (reporting that persons other than Civil Security Suspects could be detained pending
trial by military or regular or field courts).
102
Id. at 9.
103
Emergency Detention Law art. 9 (1970) (S. Vietnam), attachment to letter of [Ambassador] William E. Colby to Prime Minister Tran Thien Khiem (Oct. 12, 1970) (on file with
author in DV Collection, An Tri Folder, 1970).

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But while the PATRIOT Act was passed only six weeks after 9/11,
it does not rely on a declaration of national emergency or war. Its preamble
states that its purpose is: “To deter and punish terrorist acts in the United
States and around the world, to enhance law enforcement investigatory
tools, and for other purposes.”104 No national emergency or declaration of
war is necessary to trigger the provisions. Furthermore, while certain provisions in the PATRIOT Act do sunset, the indefinite detention provision does
not.105
Section 412 raises constitutional concerns similar to those raised
about the Emergency Detention Act of 1950 and should be repealed as the
1950 Act was. As the statutory bridge for the extension into American law
of practices long outlawed by well-established international laws and customs, Section 412 should not be kept on the books.
B. National Security & Foreign Intelligence: Evading Constitutional and Human Rights Barriers
National security and foreign intelligence concepts are central to the
rationale for indefinite administrative detentions. It is these concepts that
prompt or even compel the creation of detention programs that, by definition, must evade constitutional and human rights requirements. Administrative detentions are national security detentions.
Proponents of administrative detentions claim that administrative
detentions are the humane alternative to dealing with national security and
foreign intelligence issues—the other way being assassination.106 Criminal
trials are viewed as inadequate. Thus, it is important to look at the definitions of these concepts.
Provisions of the PATRIOT Act, other than Section 412, where national security is a key concept are those that relate to foreign intelligence.
The concept of foreign intelligence is the bridge that has permitted national
security detentions to be written into our federal law. Where in South Vietnam such detentions were permitted due to insurgency, national emergency,
and war fought within that nation’s borders, now they are permitted in the
United States because of an amorphous (congressionally undeclared) “War
on Terror” fought everywhere.107
104

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, 350-53 (2001).
105
Id. For a discussion of sun-setting provisions, see CHARLES DOYLE, SENIOR SPECIALIST,
CONGRESSIONAL RESEARCH SERVICE, USA PATRIOT ACT SUNSET: A SKETCH,
www.fas.org/irp/crus/RS21704.pdf.
106
See infra note 268 and accompanying text (“It must be recognized that, in Vietnam . . .
preventive detention is a substitute for killing people.”).
107
The Vietnam War was, from the point of view of Americans, contained within a foreign
land which we could, and eventually did, choose to leave in order to cease any immediate

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U.S. officials since 9/11 have repeatedly stated that terrorism is an
utterly new animal, that we are fighting a new kind of war, but this is exactly what officials said about Vietnam.108 The U.S. has always perceived a
need for foreign intelligence, and the two (terrorism and foreign intelligence) have now become inextricably intertwined in our laws. Where foreign intelligence used to be gathered by spying overseas (or on foreign
powers and their agents who were here in the U.S.), which was exclusively
an Executive Branch function, foreign intelligence investigations since 1978
have been regulated by the Foreign Intelligence Surveillance Act, or FISA,
and a special, secret federal court called the FISA Court or FISC, that reviews applications to spy domestically.109
While FISA was enacted in order to curb indiscriminate and unreviewable Executive Branch surveillance, the law has led gradually to the
very dangerous mixing of criminal law (which provides for the usual constitutional protections) and foreign intelligence law—i.e. FISA (which does
not). It has also led to the interchangeability of the terms foreign intelligence investigation, terrorism investigation, and national security investigation. In other words, anything that can be linked to a terrorism investigation
is a national security investigation, which naturally involves foreign intelligence. A national security investigation may or may not involve terrorism,
but will likely involve application of FISA.
Just about anything can be linked to national security. And once
linked, the lowered constitutional standards of FISA kick in. This opens the
door for almost anybody to be investigated and, when considered alongside
the detention provision, for almost anybody to be detained.
Again, while the PATRIOT Act detention provisions are intended
to permit detentions of only aliens who are thought to be national security
risks, it is clear that these provisions set a precedent for government detentions of innocent dissenting citizens and can be extended to those who

danger to us, notwithstanding our justification for being there: that the spread of Communism
endangered western democracies.
108
Colby Statement, supra note 25 (“This was a new form of war, called by the Communists a people’s war, differing in many important respects from the traditional wars of the
past. Its key characteristic was its concentration on the weak points at which the Government
made contact with the population, breaking this relationship and building a gradually increasing force to contest the authority and power of the Government.”). See also Letter from John
Shalikashvili, Gen. (ret.), U.S. Dep’t of the Army et al. to Arlen Specter, Senator, U.S. Senate & Patrick Leahy, Sen., U.S. Senate ( Jan. 3, 2005), available at http://www.globalsec
urity.org/military/library/report/2005/senate-judiciary-committee-letter_03jan2005.htm
(“Repeatedly in our past, the United States has confronted foes that, at the time they
emerged, posed threats of a scope or nature unlike any we had previously faced.”)
109
Foreign Intelligence Surveillance Act, 50 U.S.C. §§1801-63 (2000).

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merely disagree with the government.110 Indeed, with police actions and
prosecutions against grass roots activists increasing, some might argue it is
already happening.111
C. Definitions of National Security: Constitutional Concerns
A closer look at the definitions of foreign intelligence and national
security reveals some ominous threads. Oddly, national security is not defined in FISA (which is, of course, the law that most deals with issues of
national security). Rather, it is defined in the immigration laws relating to
excludable and removable aliens. National security is there defined as “the
national defense, foreign relations, or economic interests of the United
States.”112 Something as routine and legally permissible as a workers strike
at a Coca Cola plant in Colombia could be construed as a threat under this
definition.
Although national security is not defined in FISA, “threats to national security” are set forth in FISA in provisions which establish the basis
for coordination between intelligence and law enforcement. These provisions use the identical language as that used in defining foreign intelligence
information, discussed in the next paragraph.113
Foreign intelligence information (and therefore a “threat to national
security”) is:

110

See DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS
WAR ON TERRORISM 5 (2003) (“[W]hat we do to foreign nationals today often paves
the way for what will be done to American citizens tomorrow.”) See, e.g., id. at 7-8, 75-82.
111
See Bill Quigley, The St. Patrick's Four and Resistance to the War in Iraq,
COMMONDREAMS.ORG, Mar. 17, 2005, http://www.commondreams.org/views05/031732.htm; Kurt Nimmo, Ashcroft's War on Greenpeace: Sailor-Mongering Civil Disobedience,
COUNTERPUNCH (Counterpunch, Petrolia, Cal.), Oct. 24, 2003, available at
http://www.counterpunch.org/nimmo10242003.html; Press Release, Am. Civil Liberties
Union, ACLU Defends Peace Activists Facing Fines Over Iraq Travel Ban (May 26, 2005),
available at http://www.aclu.org/FreeSpeech/FreeSpeech.cfm?ID=18342&c=42; John S.
Friedman, Spying on the Protesters, NATION, Sept. 19, 2005, at 4, available at
http://www.thenation.com/doc/20050919/friedman; Carol Schiffler, Citizens for Legitimate
Government, Arresting Dissent (Aug. 8, 2005), http://www.legitgov.org/front_stpete_
schiffler_080805.html; Jay Shaft, 16 Year Old Anti-War Protester Arrested In Palm Harbor,
FL, DAILY KOS, Oct. 25, 2005, http://muledriver.dailykos.com/storyonly/2005/10/25/1
9357/102. For a list of (and links to) articles on harassment of anti-war protesters, see Stpeteforpeace.org, Media Coverage of Situation at Baywalk, http://stpeteforpeace.org/baywalk.m
edia.coverage.2005.html.
112
8 U.S.C. § 1189(c)(2) (2000) (authorizing designation of foreign terrorist organizations
by the Secretary of State).
113
See Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, §§ 504, 901, 115 Stat.
272 (codified as 50 U.S.C §§ 1806(k), 1825(k) (2000)).
IN THE

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[I]nformation that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against—(A) actual
or potential attack or other grave hostile acts of a foreign power or an
agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence
activities by an intelligence service or network of a foreign power or by an
agent of a foreign power.114

This type of foreign intelligence information is sometimes called
“protective” or “counterintelligence” information. It requires the type of
activity we usually think of spies engaging in.
A second definition of foreign intelligence information in FISA includes information relevant or necessary “to the national defense or the security of the United States” or “the conduct of the foreign affairs of the
United States.”115 According to the FISA Review Court: “This definition
generally involves information referred to as ‘affirmative’ or ‘positive’ foreign intelligence information rather than the ‘protective’ or ‘counterintelligence’ information . . . .”116 This type of intelligence is a much vaguer,
more expansive type of information. Just about anything could be relevant
to the national defense or conduct of foreign affairs. Indeed, by this definition, the Phoenix Program was a foreign intelligence operation, designed
ultimately to identify the managers of the insurgency in North Vietnam.
With either type of intelligence, it is important to remember that
such information is gathered for the purpose of protecting the interests of
the nation, not for bringing criminal prosecutions. This distinction is important when you consider that intelligence information is not protected by the
Fourth Amendment probable cause requirement. In other words, those gathering information under a foreign intelligence investigation do not have to
provide a judge with evidence of probable cause of criminal activity in order to obtain a warrant, although information obtained via a FISA warrant
can nonetheless be used in a criminal prosecution.
The FISA Review Court, convened for the first time in history in
2002 to review a FISA Court decision on the interpretation of the PATRIOT
Act provision relating to the proper standard for FISA warrants, noted that
certain FISA definitions do require criminal activity.117 While FISA does
not require probable cause of criminal activity, it does require probable

114

50 U.S.C. § 1801(e)(1)(A)-(C) (2000).
Id. § 1801(e)(2).
116
In re Sealed Case, 310 F.3d 717, 723 n.9 (FISA Ct. Rev. 2002), available at
www.fas.org/irp/agency/doj/fisa/fiscr111802.html.
117
Id. at 723-24.
115

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cause that the target is a foreign power or an agent of a foreign power.118
Thus, the FISA Review Court noted:
The definition of an agent of a foreign power, if it pertains to a U.S. person
. . . is closely tied to criminal activity. The term includes any person who
“knowingly engages in clandestine intelligence gathering activities . . .
which activities involve or may involve a violation of the criminal statutes
of the United States,” or “knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor [sic].”119

While the Court draws much of its subsequent analysis from its observation
that foreign intelligence warrants do, after all, relate to criminal activity, it
nonetheless notes that: “The term ‘foreign power,’ . . . is not defined [in
FISA] solely in terms of criminal activity. For example, although the term
includes a group engaged in international terrorism, which would involve
criminal activity, it also includes any foreign government.”120 Thus, even if
criminal activity does underlie some FISA warrants, FISA does not require
proof of such activity (rather it assumes it), and the predetermined underlying criminal activity inherent in the definition is no justification for allowing
a lack of probable cause of criminal activity standard in cases that eventually become criminal prosecutions. Exactly the opposite, one would think.
Astonishingly, the FISA Review Court itself acknowledged that the
constitutional question of whether FISA strikes the right balance “has no
118

Id. at 722-23. The Intelligence Reform Act of 2004 added a “lone wolf” terrorist provision to this clause. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No.
108-458, § 6001, 118 Stat. 3638 (codified at 50 U.S.C. § 1801(b)(1)). See Elizabeth B. Bazan, Intelligence Reform and Terrorism Prevention Act of 2004: “Lone Wolf” Amendment to
the Foreign Intelligence Surveillance Act, CRS REP. FOR CONGRESS, at CRS-2 (Dec. 29,
2004), available at http://www.fas.org/irp/crs/RS22011.pdf (“Under the new “lone wolf”
provision, a non-United States person who engages in international terrorism or activities in
preparation for international terrorism is deemed to be an “agent of a foreign power” under
FISA.”). This provision would seem to further undermine the Sixth Amendment protection
that requires probable cause of criminal activity to search or seize. Is not international terrorism simply a crime, should not it therefore be treated as criminal activity, and does not the
Sixth Amendment then apply?
119
In re Sealed Case, 310 F.3d 717, 723 (FISA Ct. Rev. 2002), available at
www.fas.org/irp/agency/doj/fisa/fiscr111802.html (citations omitted). The court continued:
International terrorism refers to activities that “involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or
any State, or would be a criminal violation if committed within the jurisdiction of
the United States or any State.” Sabotage means activities that “involve a violation
of chapter 105 of [the criminal code], or that would involve such a violation if
committed against the United States.” For purposes of clarity in this opinion we
will refer to the crimes referred to in section 1801(a)-(e) as foreign intelligence
crimes.
Id. (citations omitted).
120
Id. at 738 n.21 (citations omitted).

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definitive jurisprudential answer” and that “to the extent a FISA order
comes close to meeting [the requirements of federal criminal law], that certainly bears on its reasonableness under the Fourth Amendment.”121 In any
case, they declined to decide the issue. The Court concluded that “the procedures and government showings required under FISA, if they do not meet
the minimum Fourth Amendment warrant standards, certainly come
close.”122
Thus, where the parameters of foreign intelligence and national security are tested daily and the privacy of both aliens and citizens alike is at
stake, where intelligence information could lead to an individual being certified under Section 412 or designated as an enemy combatant and thereafter
indefinitely detained without access to an attorney or court of law, the FISA
Review Court judges have determined that they cannot determine the difference between a warrant that meets Fourth Amendment standards or one that
simply “comes close.”
V. DETENTIONS UNDER PRESIDENTIAL AUTHORITY
A. Combatant Detentions: Military Commissions and Unlawful Enemy Combatants
Bush cited Congress’ September 18, 2001, Authorization for Use of
Military Force (“AUMF”)123 and his authority as Commander-in-Chief to
justify his Military Order of November 13, 2001.124
The AUMF authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or persons,
in order to prevent any future acts of international terrorism against the
United States by such nations, organizations, or persons.”125
The Military Order is titled: “Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism.”126 It authorizes the
detention of any individual whom Bush determines “there is reason to believe . . . is or was a member of the organization known as al Qaida; [or] has
engaged in, aided or abetted, or conspired to commit, acts of international
terrorism, or acts in preparation therefor, that have caused, threaten to cause,
121

Id. at 746, 742.
Id. at 746.
123
Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
124
Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain NonCitizens in the War Against Terrorism, 3 C.F.R. 918 (2001).
125
Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
126
3 C.F.R. 918.
122

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or have as their aim to cause, injury to or adverse effects on the United
States, its citizens, national security, foreign policy, or economy.” 127
Detention authority is provided in Section 3 of the Order.128 It declares that individuals subject to the order shall be “treated humanely, without any adverse distinction based on race, color, religion, gender, birth,
wealth, or any similar criteria,” “afforded adequate food, drinking water,
shelter, clothing, and medical treatment,” and “allowed the free exercise of
religion consistent with the requirements of such detention.”129
The Order also includes a provision that detainees will be “detained
in accordance with such other conditions as the Secretary of Defense may
prescribe.”130 No limits on detention are included, nor provision for the right
to legal representation, or other basic human rights guarantees under either
the U.S. Constitution or international humanitarian law, no provisions for
standards of evidence and proof, no court review, due process, or habeas
corpus.131
It took the Department of Defense four months to establish procedures for military tribunals. On March 21, 2002, it issued Military Commission Order No. 1 (“MCO”) providing “Procedures for Trials by Military
Commissions of Certain Non-United States Citizens in the War Against
Terrorism.”132
However, in the meantime hundreds of men had already been held
in indefinite detention at Guantanamo, Abu Ghraib and other locations, and,
as has become increasingly clear from news reports, untold numbers had
already been tortured and in some cases murdered at the hands of their captors.133
In any case, certification under the Military Order did not work well
enough. Although it provided for written certification of al Qaida terrorists,
by the time the MCO was issued, Defense Department officials “indicated
127

Id. at 919.
Id.
129
Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain NonCitizens in the War Against Terrorism, 3 C.F.R. 918, 919 (2001).
130
Id.
131
See 3 C.F.R. 918.
132
U.S. Dep’t of Def., Military Commission Order No. 1: Procedures for Trials by Military
Commissions for Certain Non-United States Citizens in the War Against Terrorism, 32
C.F.R. 9.1-9.12 (2004).
133
See Prisoner Deaths in U.S. Custody, ASSOCIATED PRESS, Mar. 16, 2005, available at
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2005/03/16/national/w113007S95.DTL;
Josh White, Reported Abuse Cases Fell After Abu Ghraib, WASH. POST, Mar. 17, 2005,
available at http://www.washingtonpost.com/wp-dyn/articles/A42007-2005Mar16.html; One
Year After the Abu Ghraib Torture Photos: U.S. Government Response 'Grossly Inadequate',
HUMAN RIGHTS FIRST, Apr. 26, 2005, http://www.humanrightsfirst.org/us_law/
etn/statements/abu-yr-042605.htm.
128

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they would hold the Guantanamo prisoners indefinitely and on different
legal grounds” than the Military Order provided for—“as ‘enemy combatants’ in a war against the United States.”134
The reason was apparently that “intelligence officers began reporting back to the Pentagon that they did not have enough evidence on most
prisoners to even complete the [certification] forms” required by the Military Order.135 Thus, where there was not enough evidence to detain under
the Presidential Military Order certification process or for that matter to
detain on pending criminal charges, new, different legal grounds, based
solely on the President’s determination—the unlawful enemy combatant
designations—were simply substituted.136
The enemy combatant designations have been applied to both noncitizen detainees at Guantanamo and to several American citizens being
detained at military brigs in the United States. The Administration argued
that enemy combatants had no due process or habeas corpus rights whatsoever. The Supreme Court disagreed, handing down its landmark decision in
Hamdi v. Rumsfeld,137 in which the Court ruled that a U.S. citizen enemy
combatant captured on a battlefield abroad in combat against U.S. forces
was entitled to have his status determined by a neutral decision maker. The
same day the Hamdi decision was handed down, the Court also decided in
Rasul v. Bush138 that Guantanamo detainees also had some due process
rights and a habeas corpus right to file in any U.S. federal court. The Rasul
decision led to the Defense Department establishing the “Combatant Status
Review Tribunals” (“CSRT”), which some feel fail to satisfy even the
minimum standards of due process required either by Rasul or Hamdi.139

134

Tim Golden, Administration Officials Split Over Stalled Military Tribunals, N.Y. TIMES,
Oct.
25,
2004,
at
A1,
available at
http://www.nytimes.com/2004/10/25/
international/worldspecial2/25gitmo.html [hereinafter Golden, Officials Split over MTs].
135
Id.
136
Id.
137
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
138
Rasul v. Bush, 542 U.S. 466 (2004).
139
Under Hamdi, detainees may challenge their detention before a “neutral decisionmaker.” Hamdi, 542 U.S. at 509. Hamdi addressed in dicta what kind of procedure might
satisfy a challenge to detention, suggesting the procedures set forth in Army Regulation 1908, § 1-6, which provides for battlefield hearings to resolve doubts about the legal status of
detainees captured during combat, and was adopted to satisfy Article 5 of the Third Geneva
Convention, discussed below. Id. at 538.

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VI. SOME PROCEDURAL COMPARISONS
A.

Screenings & Status Review Procedures

Article 5 of the Geneva Convention Relative to the Treatment of
Prisoners of War (also called the Third Geneva Convention and often abbreviated “GPW”), states: “Should any doubt arise as to whether persons,
having committed a belligerent act and having fallen into the hands of the
enemy,” are POW’s, “such persons shall enjoy the protection of the present
Convention until such time as their status has been determined by a competent tribunal.”140
As we indicated earlier, until after the Supreme Court decision in
Rasul, President Bush refused to accord detainees the protections of POW
status or even to afford them any status hearing at all. Similarly, in Vietnam,
officials declared that Geneva Common Article 3, common to all four of the
Geneva Conventions, applied “only to sentencing for crimes and [did] not
prohibit a state from interning civilians or subjecting them to emergency
detention when such measures are necessary for the security or safety of the
state.”141
Common Article 3 prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”142 Article 3 has, according to
one commentator, “been described as ‘a convention within a convention’ to
provide a general formula covering respect for intrinsic human values that
would always be in force, without regard to the characterization the parties
to a conflict might give it.”143
However, as with the Bush Administration, so during Vietnam, “the
United States and South Vietnamese Governments . . . agreed that humani140

Geneva Convention Relative to the Treatment of Prisoners of War art. 5, Aug. 12, 1949,
6 U.S.T. 3317, 3324 [hereinafter Geneva III]. See also Paust, Judicial Power, supra note 2
(“When doubt exists as to whether a person is a POW, such person has the right to have his
status 'determined by a competent tribunal.' If any person detained during an armed conflict
is not a POW, such person nevertheless benefits from protections under common Article 3 of
the Geneva Conventions, which applies today in all armed conflicts and which incorporates
customary human rights to due process into the conventions.”) (citations omitted).
141
Geneva Memo, supra note 25. See also VALENTINE, supra note 1, at 378.
142
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 [hereinafter
Geneva I]; 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 [hereinafter Geneva II]; Geneva III, supra note 140; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T.
3516, 74 U.N.T.S. 287 [hereinafter Geneva IV].
143
Elsea, Battlefield Detainees, supra note 34, at CRS 9 n.43.

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tarian treatment must be accorded to all persons,” and ultimately, when its
hand was forced, the U.S. acknowledged that there were “aspects of the ‘an
tri’ procedure [that] raise[d] some problems which give us concern.”144 Officials testified, however, that the procedures were being improved to “accord with fundamental concepts of due process, and to improve the conditions of internment.”145
By 1971 the United States Military Assistance Command in Vietnam (“MACV”) had instituted screening procedures to precede the detention proceedings.146 Like the screening procedures in use now at Guantanamo, it is doubtful whether these procedures satisfied Geneva’s requirements.
1. An Tri
In 1966, MACV first issued a directive pertaining to the determination of POW status. Under this directive, identifiable North Vietnamese
Army and Vietcong fighters were accorded POW status upon capture.147 For
all others, a screening procedure was employed. So-called “Combined Tactical Screening Centers” were “activated.” Screenings were to be conducted
at the “lowest echelon of command practical.”148
According to Congressional Research Service attorney Jennifer Elsea, “the first implementation of written procedures for . . . tribunals” under
Article 5 of the Third Geneva Convention since Geneva’s signing in 1949,
was set forth in this 1966 MACV directive.149 However, it is clear that, in
fact, the directive grew out of official intent to evade Geneva’s requirements
while satisfying Congress that the U.S. was trying to comply “despite the
anomalies created by attempting to apply rules essentially designed for a
World War II situation to one involving a political, subversive infrastructure.”150
All detainees were to be classified as either prisoners of war or nonprisoners of war. Non-POW’s were either civil defendants, returnees, or
innocent civilians. Returnees were persons who, regardless of past membership in any combat force, voluntarily submitted to the “control” of the Gov144

Geneva Memo, supra note 25, at 217.
Id. at 217, 218.
146
See Headquarters, U.S. Military Assistance Command, Vietnam, Directive No. 381-46,
Dec. 27, 1967, in U.S. Assistance Programs in Vietnam: Hearings Before S. Comm. Of the
Comm. On Gov’t Operations, 92nd Cong., 1st Sess. 218 (1971) (attachment to statement by
William Colby) [hereafter MACV Directive 381-46].
147
Id. at 218.
148
Id. at 218-19.
149
Elsea, Battlefield Detainees, supra note 34, at CRS-35.
150
Geneva Memo, supra note 25, at 218.
145

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ernment of Vietnam. Civil defendants were not entitled to POW status but
were subject to trial for offenses against Vietnamese laws. These included
spies, saboteurs, and terrorists.
Detainees were defined as “[p]ersons who have been detained but
whose final status has not yet been determined.”151 This rule, as Valentine’s
book reveals, did not describe reality, as persons who might meet any of the
classifications, including POWs, could be and routinely were detained indefinitely and tortured during that detention.152
The directive declared that “[s]uch persons are entitled to humane
treatment in accordance with the provisions of the Geneva Conventions” as
if the declaration brought the U.S. fully into compliance with Geneva and
made further compliance unnecessary.153 Those who were not regular North
Vietnamese or Vietcong soldiers—in other words, “irregulars”—were accorded POW status, if caught in combat and not engaging in terrorism,
sabotage, or spying.154 Such irregulars included: guerrillas, self-defense
forces, and secret self-defense forces.
Although the MACV directive does not so state, evidently those
who were not obviously POWs were given a status determination hearing.
According to Elsea, “those not treated as POWs were treated as civil defendants, and were accorded the substantive and procedural protections” of
Geneva.155 Again, however, we know that many of these civilian defendants
languished interminably in the An Tri prisons.
In determining status, “[e]xploitation of human sources, documents,
materiel [sic], and other intelligence requirements incident to the effective
screening and classification of detainees will normally be accomplished by
intelligence personnel of the participating elements” and “[m]aximum use
must be made of interrogators and interpreters to conduct initial screening
and segregation at the lowest possible level.”156
These threshold procedures appear to resemble those used by the
Bush Administration since Rasul. The MACV directive notes that the “detaining unit” was to “insure that the proper documentation [was] initiated
and maintained on every individual” and that “data reflect circumstances of
capture and whether documents o[r] weapons were found on the de-

151

MACV Directive 381-46, supra note 146, at 220.
See VALENTINE, supra note 1, at 33, 74, 84. See also FRANK SNEPP, DECENT INTERVAL
31-38 (1978) (detailed account of the detention, interrogation and murder of prisoner of war
Nyuyen Van Tai, identified as a former deputy minister of “public security” in North Vietnam in charge of the counterespionage and terrorism network in Saigon).
153
MACV Directive 381-46, supra note 146, at 220.
154
Id.
155
Elsea, Battlefield Detainees, supra note 34, at CRS-35.
156
MACV Directive 381-46, supra note 146, at 220.
152

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tainee.”157 The hearings were clearly one-sided, weighted in favor of detention, and assumed accuracy of intelligence and the detaining unit’s documentation. No provision appears to have been made at these screening hearings for the detainee to present evidence in his favor, for legal representation, proper standards of proof, or other traditional due process protections.
2. Combatants in War on Terror
Guantanamo screening procedures came about, like those in Vietnam, only after public clamor158 and two Supreme Court decisions: Hamdi
and Rasul. But, despite these two rulings, government attorneys continued
to argue that although detainees may have a right to some due process in
challenging their detentions, all the process that was due was “a right to
appear before a panel set up entirely within the military, run by officers,
under rules that allow the detainee no lawyer and no assurance of access to
all the facts about their capture and detention.”159 The combatant status review tribunals (“CSRTs”) were purportedly erected to satisfy the Supreme
Court’s dictates, but Amnesty International expressed its opinion that “the
CSRT process may have been devised as an attempt by the government to
narrow the scope of any judicial review.”160
Senator Patrick Leahy noted that the Administration established the
CSRTs “only after being rebuked by the Supreme Court in Rasul v. Bush,”
and the procedures only “affirmed the ‘enemy combatant’ status of the
Guantanamo detainees based on secret evidence to which the detainees were
denied access, raising serious questions about the fairness of the process.”161
Moreover, revelations that CSRT commissioners ignored classified
exculpatory evidence has brought further taint to these procedures.162
157

Id. at 219.
For a discussion of public criticism of Phoenix, see VALENTINE, supra note 1, at 308,
312, 315-26.
159
Lyle Denniston, Defeat So Sweet: The Bush Administration's Strange Insistence That It
Won the Detainee Cases, SLATE, Dec. 10, 2004, http://www.slate.com/
Default.aspx?id=2110910&.
160
Press Release, Amnesty Int’l, Guantánamo: Military Commissions - Amnesty International Observer's Notes From Proceedings—No. 2, available at http://www.amnestyusa.org/
waronterror/document.do?id=80256DD400782B8480256F430046F7CE.
161
Patrick Leahy, Senator, U.S. Senate, Statement on the Detention Center at Guantanamo
Bay, Cuba,
(June 30, 2005), available at http://leahy.senate.gov/press/200506/063005b.html.
162
Jim Lobe, Guantanamo Military Commissions Continue Down Rocky Path,
ONEWORLDNET, Nov. 8, 2004, http://www.oneworld.net/article/view/97459/1/. See also
Carol D. Loennig, Panel Ignored Evidence on Detainee: U.S. Military Intelligence, German
Authorities Found No Ties to Terrorists, WASH. POST, Mar. 27, 2005, at A1, available at
http://www.washingtonpost.com/wp-dyn/articles/A3868-2005Mar26.html.
158

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a. Screenings Before Rasul
Before Rasul, there were actually two sets of screening mechanisms: one for Guantanamo detainees and another for U.S. citizen “unlawful
enemy combatants.” Neither mechanism allowed the detainee to contribute
to the record or mount any defense. In both situations, the government
maintained unilateral control over the entire process, playing accuser,
prosecutor, judge, and executioner.
i. Guantanamo Screenings Before Rasul
For the Guantanamo detainees, cases were reviewed by “an integrated team of interrogators, analysts and regional experts” who “assessed
[the detainees] according to the threat posted to U.S. national security and
the security of our friends and allies.”163 The U.S. Southern Command then
made a recommendation which was forwarded to “an interagency committee in Washington,” where the decision was made about whether to hold,
transfer, or release the individual. The Administration planned to provide
for yearly review, during which each detainee would have the opportunity
to “present information on his behalf” to a “board” that would “consider all
available information including that provided by foreign governments.”164
At no time in this process are detainees permitted to provide any defense or exculpatory evidence.
ii. Screenings of U.S. Citizens before Rasul
Before Rasul, the process for U.S. citizens captured within the U.S.
who “may be an al Qaeda operative and thus may qualify as an enemy combatant” was similar to the Guantanamo mechanism: “information on the
individual is developed and numerous options are considered by the various
relevant agencies (the Department of Defense, CIA and DOJ), including the
potential for a criminal prosecution, detention as a material witness, and
detention as an enemy combatant.”165
Further, “[o]ptions often are narrowed by the type of information
available, and the best course of action in a given case may be influenced by
numerous factors including the assessment of the individual’s threat potential and value as a possible intelligence source.”166

163

Donald H. Rumsfeld, Sec’y of Def., U.S. Dep’t of Def., Remarks Before the Greater
Miami Chamber of Commerce (Feb. 13, 2004), available at http://www.defenselink.mil/
speeches/2004/sp20040213-secdef0883.html [hereinafter Rumsfeld Remarks].
164
Id.
165
Gonzales Remarks, supra note 3.
166
Id.

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When criminal prosecution or detention as a material witness were
“on balance, less-than-ideal options as long-term solutions to the situation,”
the Administration would then “initiate some type of informal process to
present to the appropriate decision makers the question whether an individual might qualify for designation as an enemy combatant.”167 But even then,
“this work is not actually commenced unless the Office of Legal Counsel at
the Department of Justice has tentatively advised, based on oral briefings,
that the individual meets the legal standard for enemy combatant status.”168
That definition of an enemy combatant, according to the Administration, is
an individual who “has become a member or associated himself with hostile
enemy forces.”169
The Administration provided a narrative flowchart of the “screening” procedure then in use. First, the Director of Central Intelligence made a
written assessment, which was transmitted to the Secretary of Defense, who
made his own evaluation, which was then provided to the Attorney General,
who then transmitted his advice back to the Defense Secretary (along with a
memorandum from the Criminal Division of the Department of Justice that
included information from the FBI and “other sources” and a formal opinion
from the Office of Legal Counsel), all of which then went to White House
lawyers and the Counsel to the President, who then forwarded it to the
President, who made the final designation decision.170
According to the Administration, this lengthy description was intended to show that “executive branch decision making is not haphazard,
but elaborate and careful” in order to ensure that “the President’s Commander-in-Chief authority is exercised in a reasoned and deliberate manner.”171 Nonetheless, the description issued only a few months before the
Hamdi and Rasul decisions, did little to address concerns and, in any event,
the Supreme Court put an end to the processes.
After the two Supreme Court decisions came down, the Department
of Defense established the Combatant Status Review Tribunals.
iii. Screenings in Iraq
Although news reports revealed a massive lack of adequate procedures and guidance for interrogations at Abu Ghraib, little has been reported
167

Id.
Id.
169
Id. The Administration cited Ex parte Quirin, 317 U.S. 1 (1942), as the “standard” used
for this determination. For an excellent overview of this case, see Louis Fisher, Military
Tribunals: The Quirin Precedent, CRS REP. FOR CONGRESS, at CRS-8 (Mar. 26, 2002),
available at http://www.fas.org/irp/crs/RL31340.pdf.
170
See Gonzales Remarks, supra note 3.
171
Id. at 9.
168

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about the screening, detention, or trial procedures. Some of the procedures
used in the Iraq war theater are detailed in documents obtained from the
Department of Defense by the American Civil Liberties Union via a Freedom of Information Act request.172
According to one undated (ca. 2003-04) document titled “Detainee
Process,” if a detainee was determined (by what method, the documents do
not say) to have high “intelligence value,” he would immediately be transferred to the “Division Central Collection Point” in Tikrit, Iraq.173 If he was
determined to have no intelligence value “from and/or through interrogations,” he would be “tried for the violations listed,” apparently at the regional “collection point.”174 Proceedings were conducted “based on a summary courts martial model.”175 If the detainee had no intelligence value and
was not found to have committed any other violations, he was released.176
Reasons for delay in a detainees transfer or release was generally missing or
incomplete information.177
A flow chart for “Detainee Processing” at Tikrit, Iraq, lists the steps
to be followed: individual detained, capturing unit complete paperwork,
detainee arrives at one of the regional collection point detention facilities,
detainee is screened “by CI,” packet is completed.178 If a detainee had “intel
value” or otherwise warranted further detention, he was sent to the Division
Central Collection Point in Tikrit.179
At Tikrit, detainee screening was conducted only at “three designated interrogation tents.”180 One side was to be kept open at all times
unless there was a military police officer inside.181
One officer explained to superiors that detainees are most susceptible during the first few hours after capture:

172

American Civil Liberties Union, Torture Documents Released Under FOIA, by Department of Defense (Apr. 7, 2005) [hereafter ACLU, Torture Documents]. An index of
these documents is available at: http://www.aclu.org/torturefoia/released/041405/. The relevant documents here are at http://www.aclu.org/torturefoia/released/041405/2015_2164.pdf.
Page numbers cited here are to the stamped page numbers used by the ACLU. For undated
documents, dates are estimated by dates on surrounding documents and may be unreliable.
173
Id. at 002073.
174
Id.
175
Id.
176
Id.
177
Id.
178
Id. at 002074.
179
Id.
180
Id. at 002154 (Memorandum from Provost Marshal, Military Police for Record, DCCP
Guidelines for the Interrogation of Prisoners (Oct. 11, 2003)).
181
Id.

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The prisoners are captured by Soldiers, taken from their familiar surroundings, blindfolded and put into a truck and brought to this place (Abu
Ghraib); and then they are pushed down a hall with guards barking orders
and thrown into a cell, naked; and that not knowing what was going to
happen or what the guards might do caused them extreme fear.182

Detainee categories in the Iraq theatre are very similar to those in
Vietnam. Category I is high level enemy prisoners of war (“EPWs”), detained persons, civilian internees, including “black list individuals,” suspected war criminals, and “violators of UN Resolutions whose broad or
specific knowledge makes it necessary for them to be questioned without
delay by specially qualified interrogators or debriefers.”183 Category IA are
mid-level EPWs, detained persons, civilian internees, including:
[G]rey list individuals whose broad or specific knowledge of regional and
national level Ba’ath Party and Fedayeen activities, leadership and cell
structure, identities of members, recruiting, intelligence capabilities, financing, training, planning, communications and/or locations, makes it
necessary for them to be questioned without delay by operationally focused interrogators. Also includes persons suspected of affiliation with terrorist organizations, foreign intelligence services and foreign fighters.184

Both Category A and A1 detainees are transferred immediately to the Task
Force Central Collection Point in Tikrit. Category A1 detainees are processed and thereafter transferred to the Coalition Interrogation Facility at
Baghdad Airport.185
According to one army investigation: “At first, at Abu Ghraib and
elsewhere in Iraq, the handling of detainees, appropriately documenting
their capture, and identifying and accounting for them, were all dysfunctional processes, using little or no automation tools.”186 The senior investigating officer, Anthony Jones, noted, “When policies, SOPs [standard operating procedures], or doctrine were available, Soldiers [sic] were inconsistently following them. In addition, in some units, training on standard procedures or mission tasks was inadequate.”187 However, Jones added, “In my
assessment, I do not believe that multiple policies resulted in the violent or
182

FAY, INVESTIGATION, supra note 72, at 63 (statement of SFC Walters, member of the
Fort Huachuca Mobile Training Team, June 21, 2004).
183
ACLU, Torture Documents, supra note 172, at 002091.
184
Id.
185
Id.
186
ANTHONY R. JONES, LIEUTENANT GEN., U.S. DEP’T OF THE ARMY, ARMY REGULATION
15-6 REPORT, INVESTIGATION OF THE ABU GHRAIB DETENTION FACILITY AND 205TH MILITARY
INTELLIGENCE BRIGADE 21 (2004) [hereinafter JONES, INVESTIGATION], available at
http://www.defenselink.mil/news/Aug2004/d20040825fay.pdf.
187
Id. at 22.

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sexual abuses discovered at Abu Ghraib. However, confusion over policies
contributed to some of the non-violent and non-sexual abuses.”188
Finally, Jones pointed out several additional pertinent elements of
the Abu Ghraib detention situation. First were the detainees that “were accepted from other agencies and services without proper in-processing, accountability, and documentation,” who were referred to as “ghost detainees.”189 Second, Jones remarked about the “systemic lack of accountability
for interrogator actions and detainees [that] plagued detainee operations in
Abu Ghraib.” Finally, Jones noted:
Although the FBI, JTF-121, Criminal Investigative Task Force, [Iraq Survey Group], and the [Central Intelligence Agency] (CIA) were all present
at Abu Ghraib, the acronym “Other Government Agency” (OGA) referred
almost exclusively to the CIA. CIA detention and interrogation practices
led to a loss of accountability, abuse, reduced interagency cooperation, and
an unhealthy mystique that further poisoned the atmosphere at Abu
Ghraib.190

Most importantly, “local CIA officers convinced military leaders that they
should be allowed to operate outside the established local rules and procedures.”191 Many of the features noted here describe relatively normal military detentions.
b. Screenings After Rasul
It is doubtful whether CSRTs have been applied to citizen detainees, but as of July 2005, they were completed at Guantanamo for all detainees.192
The CSRTs are administrative rather than adversarial, but each detainee may present “‘reasonably available’ evidence and witnesses to a
panel of three commissioned officers to try to demonstrate that the detainee
does not meet the criteria to be designated.”193
“CSRT procedures are modeled on the procedures of Army Regulation (AR) 190-8.”194 The AR divides captives into four classes: enemy prisoners of war, retained personnel (chaplains, medical personnel, Red Cross),
civilian internees, and other detainees.195 Under AR, the preliminary deter188
189
190
191
192
193
194
195

Id.
Id.
FAY, INVESTIGATION, supra note 72, at 52-53.
JONES, INVESTIGATION, supra note 186, at 9.
Elsea, Guantanamo Detainees, supra note 33, at CRS-2.
Id.
Id. at CRS-2 n.6.
Elsea, Battlefield Detainees, supra note 34, at CRS-36.

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mination of status is made on the battlefield; those made under CSRT procedures clearly are not. AR provides that the reviewing panel decides by a
majority vote on the preponderance of evidence whether an individual
should be detained.196
According to Human Rights First, the “tribunals that will conduct
detainees’ status hearings are not neutral” and fail to satisfy the Supreme
Court’s rulings in either Rasul or Hamdi.197 Human Rights First notes:
While tribunal officers are to have had no previous connection with the
apprehension, detention, or interrogation of the detainees, this condition is
no guarantee of neutrality. A finding in favor of the detainee would require
the officer to challenge determinations made by his or her entire chain of
command, including the President, who, in an “order” issued February 7,
2002, “determine[d] that the Taliban detainees are unlawful combatants
and, therefore, do not qualify as prisoners of war . . . [and likewise] note[d]
that . . . al-Qaida detainees also do not qualify as prisoner[s] of war.”
Moreover, the tribunals may only affirm the original “enemy combatant”
designation, or determination, and they do not have the option to declare a
detainee a “lawful combatant/prisoner of war.”198

Human Rights First claims that the status hearings “do not even measure up
to the military regulation they claim to mirror,” which established, by contrast, “no institutional interest . . . in the outcome of any particular individual’s hearing” even in battlefield hearings.199
The CSRTs are not bound by rules of evidence that would apply in
federal court, or even in a court martial. The government’s evidence is presumed to be “genuine and accurate.” The government is required to present
all of its relevant evidence. The detainee’s “personal representative,” who is
assigned to him, may view classified information but does not act as legal
counsel, since the representative need not possess any professional training
and communications are not confidential—a fact of which detainees are
apparently not informed.200
Human Rights First points out that the fact that if status hearings
had been “held at the time of capture [and] determined that an individual
was a noncombatant, his deportation to Guantanamo . . . would have been a
grave breach of the [Geneva] Convention.”201
196

Id. at CRS-36-37.
HUMAN RIGHTS FIRST, HUMAN RIGHTS FIRST ANALYZES DOD’S COMBATANT STATUS
REVIEW TRIBUNALS (Aug. 2, 2004), http://www.humanrightsfirst.org/us_law/detainees/
status_review_080204.htm [hereinafter HUMAN RIGHTS FIRST ANALYZES].
198
Id.
199
Id.
200
Id. See also Elsea, Guantanamo Detainees, supra note 33, at CRS-3.
201
HUMAN RIGHTS FIRST ANALYZES, supra note 197.
197

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All in all, the War on Terror screening procedures share many, if
not most, of the features of the Vietnam screenings; these can be most easily
summed up as violating Articles 3 and 4 of the Third Geneva Convention.
The rationales for the structure of these screening procedures also seems to
be similar: that fighting a new and vicious enemy who does not follow the
laws of war himself excuses us from following those laws ourselves, in particular the so-called “Geneva law” that emphasizes human rights and responsibilities.202
B. Detention Procedures
1. An Tri Tribunal Procedures
A contemporary Department of State handbook of Vietnamese national security laws sets forth the An Tri procedures in detail.203 The An Tri
detention system permitted the rounding up of “Civilian Security Suspects”—those who were thought to be a “[d]anger to National
Security”204—on the basis of nothing more than “simply . . . the word of an
anonymous informer.”205 The U.S. puppet Vietnamese “Security Committee” could “take action on a case even though a criminal act cannot be
proven.”206 Members of “infrastructure, various associations, and political
cadre, draft evaders, deserters, and those suspected of having violated the
laws of the [Republic of Vietnam] will normally be classified as civil defendants and not [prisoners of war].”207 The procedures for administrative
detention were “far less exacting and technical than those of the [regular
Vietnamese] courts.”208
Similar to designated war on terror “unlawful enemy combatant”
detainees, “Civilian Security Suspects” could be detained initially for a
maximum period of two years, with the potential of renewed periods upon
review.209 Proceedings were closed to the public; the detainee had no right
to counsel or right to appear personally at his hearing.210 Civilian security
offenders were tried by Special Courts, Security Committees or Military
202

See Elsea, Battlefield Detainees, supra note 34, at CRS-10.
HARPER, HANDBOOK, supra note 40.
204
Id. at 3, 41. See also W. Gage McAfee, Fact Sheet: Current Status on Law Revisions
Post Apprehension Processing at VCI, 1 (1970) [hereinafter McAfee, Fact Sheet] (on file
with author in DV Collection, An Tri Folder, 1970).
205
VALENTINE, supra note 1, at 13.
206
HARPER, HANDBOOK, supra note 40, at 9.
207
VALENTINE, supra note 1, at 11.
208
Id. at 14.
209
Id. at 14-15.
210
Id. at 15. See also Justice in Vietnam, supra note 41, at 44.
203

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Courts, “in accordance with the emergency Decrees and Decree-Laws
which define security offenses and specific the forum.”211 The rules of evidence were “relatively lenient,” although an accused, in theory if not in
practice, could “rebut such evidence and . . . demand that witnesses whose
statements are in the dossier appear personally in court.”212 Evidence had
apparently merely to be “sufficient” to “support the arrest, custody, trial and
conviction of the suspect,” but classified information could be “[brought] to
the attention of the court . . . [but] not be incorporated in the official record
of the case.”213 Confessions were accepted in evidence, “signed by the accused,” and “a substantial number of convictions” were “obtained through
confessions.”214
The procedures in a fourth venue, Military Field Courts—whose
“operation . . . received considerable public attention due to the sensational
nature of some of the [Vietcong] cases tried there and the gravity of the
penalties involved”—were “considerably simplified and abbreviated, particularly as regards the pre-trial investigations.”215 The decisions of such
courts were final, without any right of appeal.216 The compiler of these statistics noted that the “laws and procedures for dealing with security offenders are far from perfect and eventually must be replaced” but “for the present, the emphasis must continue to be on winning the war.”217
2. The Bush Military Commission Procedures
While the Military Order and the Military Commissions Order provide for trials of enemy combatants, nowhere do these orders require that
every detainee be tried, and, in fact, as we have seen, the Administration has
made it clear that it does not intend to try most detainees, emphasizing that
the purpose of these detentions is to keep people off the battlefield. The
procedures established for military tribunals, however, presently contain the
greatest degree of procedure most detainees will be granted. They also contain a similar mishmash of civil and war “crimes” as the An Tri trial procedures.
The lower standards of proof, expanded secrecy provisions, denial
of judicial review, and the lack of independence from the executive branch
go hand-in-hand with and form part of the infrastructure for administrative
detentions.
211
212
213
214
215
216
217

HARPER, HANDBOOK, supra note 40, at 17; Justice in Vietnam, supra note 41, at 43.
HARPER, HANDBOOK, supra note 40, at 18.
Id. at 17.
Id. at 17-18.
Id. at 19.
Id.
Id. at 21.

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The Military Order, in anticipation of the MCO, stipulates a “full
and fair trial” but, as the Congressional Research Service notes, it “contains
few specific safeguards that appear to address the issue of impartiality.”218
The military commission panel sits “as triers of both fact and law.”219 Evidence may be admitted if, in the opinion of the presiding officer, it has
“probative value to a reasonable person.”220
An individual subject to the order may be tried only by the commission and “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding
sought on the individual’s behalf, in any court of the United States, any
court of any foreign nation, or any international tribunal.”221 Jennifer Elsea
notes that “[t]he President appears to have complete control over the proceedings.”222 She continues:
He or his designee decide which charges to press, select the members of
the panel, the prosecution and the defense counsel, select the members of
the review panel, and approve and implement the final outcome. The procedural rules are entirely under the control of the President or his designees, who write them, interpret them, enforce them, and may amend them
at any time.223

Procedural safeguards include the right to be informed of charges
sufficiently in advance of trial to prepare for defense, presumption of innocence, guilt beyond a reasonable doubt, open hearings (with exceptions),
right to counsel (with restrictions, including monitoring of communications
and supervision), and right to discovery to the extent necessary and reasonably available, subject to secrecy determinations.224 There appear to be
no exclusionary rules for admissibility of evidence and no authentication
requirements for depositions. The main concern appears to be the need for
secrecy rather than fairness of process.
218

Elsea, DOD Rules for MCs, supra note 34, at CRS-12.
Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain NonCitizens in the War Against Terrorism, 3 C.F.R. 918, 919-20 (2001).
220
Id. Judge Wallach notes that this is the same standard as was used in the Quirin case.
See Evan J. Wallach, The Logical Nexus Between the Decision to Deny Application of the
Third Geneva Convention to the Taliban and al Qaeda and the Mistreatment of Prisoners in
Abu Ghraib, 36 CASE W. RES. J. INT’L L. 541, 548 (2005) (explaining that “[t]hat rule, as
applied in World War Two and in the post-war tribunals[,] was repeatedly used to admit
evidence of a quality or obtained in a manner which would make it inadmissible under the
rules of evidence in both courts of the United States or courts martial conducted by the armed
forces of the United States”).
221
3 C.F.R. 921.
222
Elsea, DOD Rules for MCs, supra note 34, at CRS-12.
223
Id.
224
Id. at CRS-13.
219

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According to Judge Evan J. Wallach, Bush’s Military Order “and
subsequent statements by the President, Vice President, Attorney General,
Secretary of Defense, and the White House Counsel made it clear that the
tribunals were intended to follow procedural and evidentiary rules similar to
those used to try spies and war criminals during and after the Second World
War,”225 which were
applied in World War Two and in the post-war tribunals [were] repeatedly
used to admit evidence of a quality or obtained in a manner which would
make it inadmissible under the rules of evidence in both courts of the
United States or courts martial conducted by the armed forces of the
United States.226

Wallach points out further that: “None of the screening processes
applied to the Guantanamo detainees, either pre-shipment from Afghanistan, during incarceration, or following the Supreme Court’s mandate in
Hamdi, meets the requisites of Article 5” of the Third Geneva Convention
relating to prisoners of war.227
Indeed, the MCO procedures were considered inadequate by many,
including human rights organizations228 and even by some of the military
officers assigned to prosecute Guantanamo suspects.229 Three retired military officers, each formerly either a Judge Advocate General or senior legal
advisor for a branch of the United States military, jointly filed an amicus
curiae brief in the consolidated case of Rasul v. Bush, stating: “The government should not be permitted, through Executive fiat, to imprison persons indefinitely when no charges have been brought against them and the
prisoners are barred from all access to courts and other tribunals to determine their status.”230
Several military defense lawyers filed challenges to the impartiality
of the commission judges, three of whom were subsequently removed. The
lawyers also filed in federal court challenging the military tribunals.231 The
225

Wallach, supra note 220, at 547-48.
Id.
227
Id. at 563.
228
See Golden, Officials Split over MTs, supra note 134. See also Gerard P. Fogarty, Is
Guantanamo Bay Undermining the Global War on Terror?, U.S. ARMY WAR C. Q., 54, 5960, available at http://carlisle-www.army.mil/usawc/Parameters/05autumn/fogarty.htm (providing a detailed review of Guantanamo and military review of combatants).
229
See Leigh Sales, Leaked emails claim Guantanamo trials rigged, ABC NEWS ONLINE,
Aug. 1, 2005, http://www.abc.net.au/news/newsitems/200508/s1426797.htm.
230
Brief for Retired Military Officers as Amici Curiae Supporting Petitioners, Rasul v.
Bush, 540 U.S. 466 (2004), available at http://www.ccr-ny.org/v2/reports/docs/RasulRet
iredMilitaryOfficersAmicus.pdf.
231
David Goodman, Friendly Fire: A Military Lawyer Battles the Commissions, AMNESTY
MAG., Summer 2004, available at http://www.amnestyusa.org/amnestynow/friendly_fir
226

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suit, Hamdan v. Rumsfeld, resulted in a November 2004 District of Columbia Circuit Court decision declaring that
unless and until the rules for Military Commissions (Department of Defense Military Commission Order No. 1) are amended so that they are consistent with and not contrary to Uniform Code of Military Justice Article
39, 10 U.S.C. 839, petitioner may not be tried by Military Commission for
the offenses with which he is charged [and] unless and until a competent
tribunal determines that petitioner is not entitled to the protections afforded prisoners-of-war under Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, he may not
be tried by Military Commission for the offenses with which he is
charged.232

However, on July 15, 2005, the Court of Appeals for the D.C. Circuit overturned the D.C. District Court decision, ruling that Hamdan has no
individual right to assert a Geneva violation and that the CSRT, which determined that Hamdan is an enemy combatant subject to indefinite detention, satisfies Geneva’s hearing requirement.233 Hamdan has appealed to the
Supreme Court.234 Neil Katyal, Hamdan’s attorney, writes:
The court of appeals, by rejecting longstanding constitutional, international law, and statutory constraints on military commissions, has given
the President that power in tribunals that impose life imprisonment and
death. Its decision vests the President with the ability to circumvent the
federal courts and time-tested limits on the Executive. 235

He notes that: “This case challenges (1) a commission without explicit Congressional authorization, (2) in a place far removed from hostilities, (3) to
try an offense unknown to the laws of war, (4) under procedures that flout
basic tenets of military justice, (5) against a civilian who contests his unlawful combatancy.”236 And: “The essence of the court of appeals’ contrary
e.html; Scott Higham, Bin Laden Aide Is Charged at First Tribunal—Defense Lawyer Calls
Process Unfair, WASH. POST, Aug. 25, 2004, at A1, available at
http://www.washingtonpost.com/wp-dyn/articles/A28241-2004Aug24.html;
Jonathan
Mahler, Commander Swift Objects, N.Y. TIMES, June 13, 2004, at A2, available at
http://www.nytimes.com/2004/06/13/magazine/13MILITARY.html. The brief was filed in
the Hamdan case on January 14, 2004.
232
Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 173-74 (D. D.C. 2004), rev’d, 415 F.3d 33
(D.C. Cir. 2005).
233
Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).
234
Petition for Writ of Certiorari, Hamdan v. Rumsfeld, 126 S.Ct. 622 (2005) (No. 05184), available at http://www.law.georgetown.edu/faculty/nkk/documents/8-7-05_Cert_Peti
tion.nk11.pdf.
235
Id.
236
Id. at 9.

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position is that while Petitioner has no rights under the Constitution, treaties, common law, and statutes, he is subject to the penalties and pains of
each.”237
On a somewhat analogous question, on October 5, 2005, the Senate
voted 90-9 in favor of an anti-torture statute that would require all interrogations to comply with the Uniform Code of Military Justice.238 The D.C. Circuit Court of Appeals did not require that the Military Tribunals adhere to
the Uniform Code, as the D.C. Circuit Court itself had, but Congress defied
the White House’s threatened veto to pass the anti-torture law that requires
such adherence.
The Bush detention scheme, like An-Tri, is designed to screen and
detain without a regular trial those who are merely suspected of being dangerous to national security. Again like An-Tri, it was set up with the primary purpose of gathering intelligence, or as White House Counsel Alberto
Gonzales said, with “a high premium on . . . the ability to quickly obtain
information from captured terrorists.”239
VII. THE LAW OF WAR & DETERMINATION OF DETAINEE STATUS240
Where the U.S. eventually acknowledged residual responsibility
under the Geneva Conventions for the Phoenix detentions in Vietnam
(originally having denied all responsibility, saying it was not in charge), the
Bush Administration, while stating it would follow the spirit of Geneva, has
from the start claimed that Geneva does not apply to most of the detainees,
and in any case, that no tribunal other than its own executive decision was
needed to determine a detainee’s status.
Bush refused to acknowledge the application of Geneva to terrorist
suspects, but White House counsel Alberto Gonzales advised him that “even
if [the Geneva Convention] is not applicable, we can still bring war crimes
charges against anyone who mistreats U.S. personnel.”241 This sort of incongruity calls for judicial and congressional scrutiny.
Administration officials have insisted that they are at war and the
laws of war apply, and therefore “[t]o state repeatedly that detainees are
237

Id. at 15.
Charles Babington & Shailagh Murray, Senate Supports Interrogation Limits, WASH.
POST, Oct. 6, 2005, at A01, available at http://www.washingtonpost.com/wp-dyn/content/a
rticle/2005/10/05/AR2005100502062.html.
239
Memorandum from Alberto Gonzales, Counsel to the President, to George W. Bush,
President, Decision Re Application of the Geneva Convention on Prisoners of War to the
Conflict with Al Qaeda and the Taliban (Jan. 25, 2002), available at http://msnbc.ms
n.com/id/4999148/site/newsweek/ [hereafter Gonzales Memo].
240
This section relies heavily on Elsea, Battlefield Detainees, supra note 34, at CRS-10-38,
and ABA TASK FORCE REPORT, supra note 20 passim.
241
Gonzales Memo, supra note 239.
238

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being ‘held without charge’ mistakenly assumes that charges are somehow
necessary or appropriate.”242 Detention, they emphasize, is not an act of
punishment, but one of security and military necessity.
The Bush Administration is correct that the laws of war provide for
detention of enemy combatants where feasible, that such detentions are not
intended as punishment, and that wartime detentions last for the duration of
the conflict. But there are many assumptions made by the Administration
that are glossed over by the position it has taken relative to detainees. For
one thing, if the laws of war and not the laws of criminal justice apply, the
Executive does not merely gain powers, it also acquires additional responsibilities. And even without those additional responsibilities, the President’s
powers are not unlimited or beyond question. The law of war places on the
Executive responsibilities that are nonderogable. It also grants rights to
combatants that are nonderogable by any power.
There are two branches of the laws of war: the older one is sometimes called the “Hague law,” after the Hague Conventions of 1899243 and
1907,244 which prescribes the rules of engagement during combat and is
based on the key principles of military necessity and proportionality, and
the newer “Geneva law,” after the Geneva Conventions of 1929245 and
1949,246 which emphasizes human rights and responsibilities, including the
humane treatment of prisoners.
The law of war is based on the idea of reciprocity—you treat your
enemies the way you want them to treat you. Derogation from the rules by
one party, however, does not excuse breaches by another. “Were this not the
case, any deviation from the letter of the law could be invoked to justify
wholesale abandonment of the law of war, causing the conflict to degenerate into the kind of barbarity the law of war aims to mitigate.”247
Further, parties to an armed conflict retain the same rights and obligations without regard to whether they initiated the hostilities or whether
their conduct is justifiable under international law.

242
Gonzales Remarks, supra note 3; see also Rumsfeld Remarks, supra note 163 (noting
detention “is a practice long established under the law of armed conflict for dealing with
enemy combatants in a time of war”).
243
Convention with Respect to the Laws and Customs of War on Land art. 4, July 29,
1899, 32 Stat. 1803, reprinted in 1 AM. J. INT’L L. 129 (Supp. 1907).
244
Convention Respecting the Laws and Customs of War on Land art. 4, Oct. 18, 1907, 36
Stat. 2277, reprinted in 2 AM. J. INT’L L. 90 (Supp. 1908).
245
Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929 47
Stat. 2021, reprinted in 27 AM J. INT’L L. 63 (Supp. 1933).
246
Geneva I, supra note 142; Geneva II, supra note 142; Geneva III, supra note 140;
Geneva IV, supra note 142.
247
Elsea, Battlefield Detainees, supra note 34, at CRS-11.

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Thus, President Bush may not excuse the United States from honoring (or applying) the Geneva Conventions or other international treaties
applicable in the war on terror on the grounds that the 9/11 attacks were
unprovoked or violated the laws of war.
The Administration may not unlawfully or arbitrarily detain terrorist suspects or presumed combatants without proper process. Indeed, although Congress did authorize the use of “all necessary and appropriate
force” against the 9/11 terrorists and those who helped them, Congress did
not and cannot authorize the abrogation of properly ratified treaties without
the appropriate congressional processes, of customary international law, or
of violations of the U.S. Constitution. Nor can Congress authorize indefinite
detentions simply on the grounds that, as Rumsfeld put it, “they’re dangerous” or “[i]t provides us with intelligence” or even that “[i]t can save
lives.”248
Under the laws of war, in order to determine the legal status of detainees it is necessary to determine whether an armed conflict exists, and if
so, whether it is international or non-international.249 For the most part, noninternational conflicts (that is, civil wars or insurgencies) do not implicate
the laws of war.250 Intervention by a foreign power on the side of insurgents
will implicate the laws of war.
The Bush Administration has declared that the laws of war, not
criminal justice, apply to the present “War on Terror,” but has routinely
denied that there are any state actors other than the United States. In other
words, the U.S. has refused to recognize the Taliban as the de facto government of Afghanistan at the time of 9/11. Jennifer Elsea notes: “Denying
that any state is involved in the terrorist acts that precipitated the armed
conflict could call into question the United States’ treatment of those attacks
as violations of the law of war and for treating the global war on terrorism
as an international armed conflict.”251
Authority to detain enemy combatants rests on the assumption that
soldiers pay allegiance to a state and once that state ceases hostilities, so
will the soldiers. But what about when those “soldiers” do not pay allegiance to a state but to a cause? What if the so-called war cannot be won by
traditional means?
The ambiguities in the War on Terror—and there are many more:
for example, in deciding where exactly the battlefield is, or whether an individual is a combatant or a terrorist, etc.—are not resolved by a unilateral

248
249
250
251

Rumsfeld Remarks, supra note 163.
Elsea, Battlefield Detainees, supra note 34, at CRS-11.
Id.
Elsea, Battlefield Detainees, supra note 34, at CRS-14.

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executive decision not to apply Geneva to a certain class of individuals or to
indefinitely detain any person who is “captured.”
Even where questions seem to have been easily resolved on the battlefield by ground level combat unit determinations, the ambiguities and
uncertainties raised by the War on Terror, far from authorizing less process,
should compel more. For example, a combat unit seeking the whereabouts
of Bin Laden may detain individuals who might divulge such information
but who are otherwise not combatants, members of Al Qaida, or the Taliban. Alternatively, an individual may be a member of the Taliban for religious reasons and never have engaged in any fighting. Should these different individuals be indefinitely detained along with hardened terrorists?
Bush’s advance determinations that all members of the Taliban are
enemy combatants not entitled to POW status and all members of Al Qaida
are enemy combatants not protected by Geneva252 are inadequate and liable
to gross error. His refusal to provide for any process, even the minimal
process required by the Geneva Conventions for status hearings is not only
inadequate, it is a grave breach of Geneva and is thus a war crime under 18
U.S.C. section 2441.253
One of the darkest truths about both the An Tri detentions and the
current administrative detentions of unlawful enemy combatants is that not
only did both violate international and domestic laws, but instead that in
both cases the U.S. government officials clearly did so intentionally.254
With respect to Bush Administration policies, two respected law
professors, both of whom served in the military, independently concluded
that the January 2002 memo by White House Counsel Alberto R. Gonzales
and subsequent presidential decisions and authorizations are “evidence of
the initiation of a Common Plan to violate the 1949 Geneva Conventions.”255
A. Intentional Violations of the Geneva Conventions
The Phoenix Program was from the start an unlawful program. It
began as a CIA covert operation, ultimately evolving into a program of detentions of dangerous persons, purportedly run by the Vietnamese, but in
252

Id. at CRS-1-2. See also Elsea, Guantanamo Detainees, supra note 33, at CRS-2.
18 U.S.C. § 2441 (2000).
254
See VALENTINE, supra note 1, at 376 (discussing an interview with Congressional Aide
William Phillips in which Phillips claimed that a training manual obtained by a military
whistle-blower in 1970, “showed that Phoenix policy” was in violation of the Geneva Convention and “was not something manufactured out in field but was sanctioned by the U.S.
government”).
255
See Paust, Executive Plans, supra note 24, at 812; see also Jordan J. Paust, The Common Plan to Violate the Geneva Conventions, JURIST, May 24, 2004, available at http://peg
c.no-ip.info/paust_the_plan.html; Wallach, supra note 220, at 614.
253

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fact always managed by Americans. Eventually, those in charge—an “oldboy network, a group of guys at highest level . . . who thought they were
Lawrence of Arabia”256—were required to answer to Congress and conform
the program more closely to Geneva requirements. But there was never a
full accounting of American transgressions against the Vietnamese.
Similarly, Bush administration rationales and justifications for violating established, time-tested international protections are the same as those
used by American officials during Vietnam. Indeed, what one Vietnamese
scholar presciently wrote in 1982 could be echoed today: “American politicians have not yet changed their policy . . . . Almost the same people [are
applying] the same policy with the same principles and the same spirit.”257
As noted earlier, American officials in Vietnam decided that Geneva did not apply to security detainees. Their argument that either the individuals were not “protected persons” under Article 4 of the Fourth Geneva
Convention (for protection of civilians) or that Article 3 (common to all the
four Geneva Conventions, mandating humanitarian treatment to all persons,
even if not protected persons, and forbidding “‘the passing of sentences and
the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples’”) did not apply to those
who were not charged with a crime and did “not prohibit a state from interning civilians or subjecting them to emergency detention when such
measures are necessary for the security or safety of the state,”258 is ominously similar to the reasoning now applied by the Bush Administration.
Based on the argument that the President has the constitutional authority to suspend treaties in certain circumstances or to interpret them to
mean that they do not apply to certain persons, President Bush initially decreed that the Geneva Conventions did not apply to al Qaeda (because they
were not party to the Conventions) or the Taliban (because they were
unlawful enemy combatants not qualifying as prisoners of war).259
Judge Wallach notes, “it [is] clear that by the end of January [2002],
at least, consideration was being given to conduct which might violate [the
Third Geneva Convention’s] strictures regarding the detention and interrogation of prisoners of war.”260 Former White House Counsel Alberto Gonzales —now Attorney General, with all the powers that position entails—
advised the President on January 25, 2002 that if the President determined
256

VALENTINE, supra note 1, at 420 (quoting Stan Fulcher, a Phoenix coordinator).
VALENTINE, supra note 1, at 421 (quoting NGUYEN NGOC HUY, UNDERSTANDING
VIETNAM 85 (1982).
258
Geneva Memo, supra note 25, at 217.
259
See Wallach, supra note 220, at 555-56 n.66, 556-57 n.67, 558-59 n.77, 557.
260
Id. at 554.
257

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that Geneva did not apply, his decision would render “obsolete Geneva’s
strict limitations on questioning of enemy prisoners,” thus “eliminat[ing]
any argument regarding the need for case-by-case determinations of POW
status,” and insulating the Administration against domestic prosecution for
war crimes.261
Wallach points out: “Any such approach is incompatible with the
core concepts of rule of law, coequal branches of government and separation of powers,”262 “would fly in the face of every concept of rule of law
and regulation of armed conflict developed over the past two hundred years
. . . [and] would also be a direct and criminal violation of the standards for
minimal conflict in war time developed at Nuremburg.”263 Wallach also
notes, these violations could constitute grave breaches of Geneva, which
would constitute a violation of the War Crimes Act of 1996.264
The An-Tri detentions arose out of a desperate climate. In Vietnam,
American involvement began in the early 1950s, with American soldiers
fighting alongside the French.265 By 1952, American advisers began training
Vietnamese units.266 By 1954, the United States had installed Ngo Dinh
Diem, and the CIA was operating a brutal psychological warfare program
which later evolved and was incorporated into Phoenix. Arrests and executions of Vietnamese Communists began in 1956 with the notorious Denunciation campaign under Diem.267 “The campaign was managed by security
committees, which were chaired by CIA advised security officers who had
authority to arrest, confiscate land from, and summarily execute Communists.”268
A State of National Emergency was declared by the Vietnamese
puppet government in August 1964 and a State of War in June 1965. A
1972 memo by Ray A. Meyer, an American legal adviser in Vietnam, making recommendations for An-Tri reforms, noted: “It must be recognized
that, in Vietnam . . . preventive detention is a substitute for killing people.”269
But even when “reforms” of the An-Tri system were considered, the
U.S. embassy decided to defer making them because of “intractable CIA

261
262
263
264
265
266
267
268
269

Id. at 553 (quoting Gonzales Memo, supra note 239).
Id. at 562 n. 85.
Id. at 566.
Id. at 573, 619.
VALENTINE, supra note 1, at 24.
Id.
Id.
Id. at 28.
Meyer, Memo, supra note 61.

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internal security considerations . . .”270 and the system was then permanently
solidified into “a system of indeterminate terms of detention.”271 Although
many of Meyer’s recommendations (hearings open to the public, gradual
phasing out of An-Tri), were not adopted, the indefinite detention program
was retained.272
These facts illustrate the original, albeit ex post facto, rationale for
the indefinite detentions: an alternative to battlefield killing, but it was always a means of gaining and exploiting intelligence. This rationale has now
been extended to the global “War on Terror,” justifying indefinite detentions of any terrorist suspect, without trial, without any sort of due process
or habeas corpus protections, and, prior to the Supreme Court decision in
Hamdi, without even a legitimate status determination.273
The dilemma now, as during Vietnam, is genuine. How to identify
and what to do with persons who plan to sabotage and murder civilians? Is
this a war or is it an insurgency? What do you do when civilians may be the
enemy? Outright assassination of masses of suspect civilians is not only
morally repugnant and wrong, but against the laws of war. But, then, what
do you do when the insurgency is civilian based? The easy answer is: you
“administratively” (but not quite legally) detain.
But indefinite administrative detentions are not the answer, since
the reader may recall that the Phoenix Program was not only about detentions—and this is the real crux of the problem with administrative detention
programs—Phoenix was in fact originally an assassination program, so that
the culture of what came to be known as guerilla or “unconventional warfare,”274 bled into the detention program, leading to egregious abuses, torture and killing of detainees, exactly what has now been discovered in our
treatment of prisoners at Abu Ghraib and other combatant detention centers.
In both cases the justification was identical: these are dangerous terrorists who want to kill us; therefore, the humane alternative to killing them

270

VALENTINE, supra note 1, at 401.
Meyer, Memo, supra note 61, at 6.
272
See VALENTINE, supra note 1, at 401.
273
It is clear from the Geneva Conventions that to determine a prisoner’s status as a lawful
or unlawful enemy combatant, a court-like hearing is required. See COMMENTARY ON THE
GENEVA CONVENTIONS OF 12 AUGUST 1949 75-76 (Jean C. Pictet ed., 1958), available at
http://www.icrc.org/ihl.nsf/COM/375-590008?OpenDocument (“[D]ecisions which might
have the gravest consequences should not be left to a single person, who might often be of
subordinate rank. The matter should be taken to a court . . . A further amendment was therefore made . . . stipulating that a decision regarding persons whose status was in doubt would
be taken by a ‘competent tribunal.’“).
274
See JENNIFER VAN BERGEN, THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR
AMERICA 172, 166-92 (2005).
271

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is to indefinitely detain them.275 The justification makes sense until one realizes that without an adequate screening process, there is no way to tell who
is and who is not a dangerous terrorist. American governments and presidents have relied for centuries on intelligence to make such decisions – and
that is the underlying basis for making such determinations up to now: i.e.,
that the President has the authority to determine who is and who is not a
dangerous terrorist because the President has access to intelligence. However, unquestioning reliance on the President has throughout history been
repeatedly shown to have been misplaced. Intelligence is often based on
hearsay, innuendo, and rumor. It is therefore problematic to rely exclusively
on intelligence as the means of determining who is dangerous and who is
not.276
There simply is no fair and thorough process by which a President
can make such determinations. For one thing, Presidents must be viewed as
one of the primary targets of terrorists and therefore cannot sit in neutral
judgment of those they have designated as such. But, even apart from that,
the President’s job is not a judicial one. His role is to execute the laws, not
to decide what the law is.
Apart from these underlying concerns and arguments, indefinitely
detaining anyone without due process—terrorist suspects, possible saboteurs, or criminal suspects of a more traditional type (and terrorism is a
crime, too)—is a violation of the laws of war. Major General Archer Lerch
wrote in 1945 about the First (1929) Geneva Convention: “The Geneva
275

Elsea, Detention of American Citizens, supra note 29 (“The law of war encourages
capture and detention of enemy combatants as a more humane alternative [than] to accomplish the same purpose by wounding or killing them. Enemy civilians may be interned for
similar reasons … in order to prevent their acting on behalf of the enemy and to deprive the
enemy of resources it might use in its war efforts.”).
276
See Najjar v. Reno, 97 F.Supp.2d 1329, 1355, 1360-62 (S.D. Fla. 2000) (holding that
procedural due process rights had been violated insofar as use of classified evidence deprived
petitioner of right to fair hearing and noting “substantial risk that the [Immigration Judge]
and the [Board of Immigration Appeals] could reach an erroneous or unreliable determination that Petitioner should continue to be detained as a threat to national security"), vacated
as moot sub nom Najjar v. Ashcroft, 273 F.3d 1330 (11th Cir. 2001); Kiareldeen v. Reno, 71
F.Supp.2d 402, 413, 416-17, 419 (D. N.J. 1999) (granting petitioner's writ of habeas corpus
based on challenge to the use of secret evidence and stating that "the INS' reliance on secret
evidence raises serious issues about the integrity of the adversarial process, the impossibility
of self-defense against undisclosed charges, and the reliability of government processes
initiated and prosecuted in darkness") (discussing speculation that source of government's
information was petitioner's ex-wife involved in custody dispute with petitioner), rev'd in
part sub nom. Kiareldeen v. Ashcroft, 273 F.3d 542 (3rd Cir. 2001) (ruling that the government was “substantially justified” in its prosecution and reversing grant of attorney's fees
only); Susan M. Akram, Scheherezade Meets Kafka: Two Dozen Sordid Tales of Ideological
Exclusion, 14 GEO. IMMIGR. L.J. 51, 83-90 & nn.186-87 (1999) (describing submission of
mistranslated documents, erroneous classifications, and agency bias in secret evidence
cases).

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Convention, I might emphasize is law. Until that law is changed by competent authority, the War Department is bound to follow it.”277
The war on terror is a war that British Government officials predict
may last fifty years.278 Do we propose perpetually shelving all the international humanitarian laws, the laws of war, and the Nuremberg Charter in
order to prosecute this war? Many of these principles were developed as a
result of wars.
The problem also is that, having previously erected a system of indefinite detention and interrogation for civilian security suspects, we have
created and legitimized a dangerous practice and have made it a normal part
of our culture.
VIII. HOW DID WE GET HERE?
Although Vietnam may be and often is seen as a shameful episode
in our history, it is clear that we are now repeating that history. Yale Law
Professor Harold H. Koh wrote in 1990 about the Iran-Contra Affair:
If the Iran-contra committees had looked past Watergate to the Vietnam
era, they would have seen that the Iran-contra affair was only the tip of a
much larger iceberg that crystallized during the Vietnam War. All of the
congressional-executive struggles that surrounded the affair merely replicated battles that transpired during that earlier period. That history should
have repeated itself across so many spheres of foreign affairs, even after
Congress has passed so many statutes to avoid repetition of the Vietnamera evasions, suggests that the Iran-contra affair exposed systemic, rather
than localized, problems in the American foreign-policy process.279

According to Koh, executive seizure of the initiative in foreign affairs can be said to arise from the fact that under our Constitution, the president may more easily do so than may Congress. Koh notes that, beginning
with President Franklin Roosevelt’s initiation of “extrovert” foreign policy,
“[a]n entire generation of Americans grew up and came to power believing
in the wisdom of the muscular presidential leadership of foreign policy.”280
“Yet,” Koh notes, “Vietnam caused an entire generation to rethink
its attitude toward foreign policy. National elites became less willing to
intervene to defend other nations and to bear the costs of world leader-

277
Archer Lerch, The Army Reports on POWS, AM. MERCURY, May, 1945, at 536-47,
available at http://lawofwar.org/Protected%20Persons.htm.
278
War on Terror “May Last 50 Years, BBC NEWS, Oct. 27, 2001, http://news.bbc.co
.uk/1/hi/uk/1623036.stm.
279
HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER
THE IRAN-CONTRA AFFAIR 62 (1990).
280
Id. at 119.

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ship.”281 “Why, then, have presidential initiatives not only continued, but
appeared to accelerate, during the post-Vietnam era?”282 Koh believes that
“America’s declining role as world hegemon has forced changes in the
postwar structure of international institutions, which have in turn stimulated
further presidential initiatives.”283
A shift has also taken place in the public mind. “The rise of new
and unanticipated problems not subject to the control of any nation-state,
such as global terrorism and the debt crisis, have increasingly forced the
United States into a reactive international posture. Given the president’s
superior institutional capacity to initiate governmental action, the burden of
generating reactive responses to external challenges has almost invariably
fallen on him.”284 According to Koh, “[t]he same public opinion that has
empowered the plebiscitary president has simultaneously subjected him to
almost irresistible pressures to act quickly in times of real or imagined crisis.”285 Koh attributed what he saw in 1990 as “the recent wave of treaty
breaking and bending” as a reflection of a “reactive presidential role in leading both America’s flight from international organizations and its movement
toward alternative mechanisms of multilateral cooperation.”286
Koh cites “President Reagan’s use of short-term military strikes and
emergency economic powers (to respond to terrorism); longer-term military
commitments in Lebanon and the Persian Gulf (to respond to requests for
peacekeeping); arms sales (to respond to military tensions in the Middle
East); and covert actions (to effectuate neo-containment policies in Central
America and Angola) [as reflections of] the modern American perception
that crisis situations uniquely demand a presidential response.”287
Whatever the reasons for “presidential initiative,” it is clear that
such initiative is at the bottom of the abuses found behind the present detentions of combatants. It is clear that, whether or not we should require presidents rather than Congress to be responsible for creating and carrying out
foreign policy, the President now is responsible for those things and thus
cannot claim both to lead the nation and simultaneously evade responsibility
for the egregious acts of subordinates who follow his policies. Having issued orders that intentionally evade and violate the central international
laws relating to detention and status determination of belligerents, having
sanctioned indefinite detentions and interrogations that violate those same
281
282
283
284
285
286
287

Id.
Id.
Id. at 120.
Id. at 121.
Id.
Id.
Id. at 122.

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503

laws, which ultimately led to torture and murder committed by soldiers and
military intelligence personnel, the President and his advisers are ultimately
responsible for the consequences of those violations. They may not evade
such responsibility merely by stating that laws do not apply, or as Charles
B. Gittings of the Project to Enforce the Geneva Conventions put it recently
in an amicus curiae brief in the Guantanamo Bay Detainee Cases, they may
not “commit war crimes with impunity [simply] because they are responsible for enforcing the laws.”288
We have reached a critical point in our history, a point which has
ramifications as far-reaching as the Civil War or World War II. Since the
WWII, the United States has evolved to the point where it is the sole super
power on earth. No nation has its economic or military might. But if we are
to lead the world into the 21st Century, we must also establish our unchallenged moral authority. This is the job of the President, and as Commander
in Chief, he must set a standard in fighting the War on Terror that rises
above the moral ambiguities and potential for human rights abuses that are
embedded in the policy of administrative detentions. For the sake of our
national soul, we must find a better way.

288

Brief for Charles B. Gittings, Jr., as Amici Curiae Supporting Petitioners at 10, In re
Guantanamo Detainee Cases, 355 F.Supp.2d 482 (D.D.C. 2005) (No. 02-0299, No. 02-0828,
No. 02-1130, No. 04-1135, No. 04-1136, No. 04-1137, No. 04-1142, No. 04-1144, No. 041164, No. 04-1166, No. 04-1194, No. 04-1227, and No. 04-1254), available at
http://pegc.no-ip.info/archive/DC_Gitmo_Cases_JHG/CBG_gitmo_amicus_20041012.pdf.

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APPENDIX A
NOTE ON INTERNATIONAL HUMAN RIGHTS PRINCIPLES ADOPTED IN THIS
ARTICLE
We are aware that legal arguments concerning due process, trial and
legal counsel rights, detention and treatment vary depending upon the situation and that lawyers on both sides of these arguments distinguish combatants from noncombatants, lawful or unlawful, citizens or aliens, found in the
U.S. or abroad, POW’s under the meaning of Geneva or some other category, and so on. See Elsea, Detention of American Citizens, supra note 29.
Our position, however, adopts a broader brush that does not require
such distinctions, relying instead on internationally recognized basic human
rights of due process, fair trials, and freedom from torture or inhumane
treatment. For foundational principles, we refer readers to the Universal
Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d
Sess., 1st plen. mtg., U.N.Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR].
The following is an excerpt from the Preamble to the UDHR:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent
of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest
aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a
last resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law,
....
Now, therefore,
The General Assembly
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every
individual and every organ of society, keeping this Declaration constantly
in mind, shall strive by teaching and education to promote respect for these
rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance,
both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Specific provisions of the UDHR that we feel are significant in the
context of administrative detentions are, for example:

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(Art. 5) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment;
(Art. 8) Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by
the constitution or by law; (Art. 9) No one shall be subjected to arbitrary
arrest, detention or exile; and
(Art. 11(1)) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at
which he has had all the guarantees necessary for his defense.

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APPENDIX B
LISTING PERSONS SUBJECT TO SECTION 412 CERTIFICATION
USAPA § 411(a), codified at 8 U.S.C. § 1182(a)(3) (amending INA §
212(a)(3))
Section 412(a) amends Section 236A of INA. Subsection (3)
CERTIFICATION, reads:
The Attorney General may certify an alien under this paragraph if the
Attorney General has reasonable grounds to believe that the alien-(A) is described in section 212(a)(3)(A)(i), 212(a)(3)(A)(iii),
212(a)(3)(B), 237(a)(4)(A)(i), 237(a)(4)(A)(iii), or 237(a)(4)(B); or
(B) is engaged in any other activity that endangers the national security of the United States.
The provisions listed under (A) read as follows:
Section 212 of INA provides standards for excludability of certain
aliens. The provisions applying to Section 412 certification are:
212(a)(3)(A)(i)—any activity (I) to violate any law of the United
States relating to espionage or sabotage or (II) to violate or evade any
law prohibiting export from the United States of goods, technology, or
sensitive information
212(a)(3)(A)(iii)—any activity a purpose of which is the opposition
to, or control or overthrow of, the Government of the United States by
force, violence, or other unlawful means.
212(a)(3)(B)—Terrorist activities
(i) In general Any alien who—
(I) has engaged in a terrorist activity,
(II) a consular officer or the Attorney General knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry
in any terrorist activity (as defined in clause (iv)),
(III) has, under circumstances indicating an intention to cause death or
serious bodily harm, incited terrorist activity,
(IV) is a representative (as defined in clause (v)) of—
(aa) a foreign terrorist organization, as designated by the Secretary of State under section 1189 of this title, or
(bb) a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has
determined undermines United States efforts to reduce or eliminate terrorist activities,
(V) is a member of a foreign terrorist organization, as designated by
the Secretary under section 1189 of this title, or which the alien
knows or should have known is a terrorist organization [1]
(VI) has used the alien’s position of prominence within any country to
endorse or espouse terrorist activity, or to persuade others to support

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terrorist activity or a terrorist organization, in a way that the Secretary
of State has determined undermines United States efforts to reduce or
eliminate terrorist activities, or
(VII) is the spouse or child of an alien who is inadmissible under this
section, if the activity causing the alien to be found inadmissible occurred within the last 5 years, is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation
Organization is considered, for purposes of this chapter, to be engaged
in a terrorist activity.
Section 237 INA provides for removal of certain aliens.
237(a)(4)(A)(i), 237(a)(4)(A)(iii), and 237(a)(4)(B)—are otherwise identical to the 212 sections.

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APPENDIX C
RESOLUTION OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW
(MARCH 30, 2006)
The American Society of International Law, at its centennial annual
meeting in Washington, DC, on March 30, 2006, Resolves:
1. Resort to armed force is governed by the Charter of the United Nations
and other international law (jus ad bellum).
2. Conduct of armed conflict and occupation is governed by the Geneva
Conventions of August 12, 1949, and other international law (jus in bello).
3. Torture and cruel, inhuman, or degrading treatment of any person in the
custody or control of a state are prohibited by international law from
which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to
all branches of national governments, to their agents, and to all combatant
forces.
6. In some circumstances, commanders (both military and civilian) are
personally responsible under international law for the acts of their subordinates.
7. All states should maintain security and liberty in a manner consistent
with their international law obligations.