The initial decision to transport detainees halfway around the world to Guantanamo was based primarily on the calculation that the government could operate in a sphere of lawlessness there, outside the scrutiny of courts or the press and free to make up any rules it liked. Guantanamo is not sovereign territory of the United States because its nominal sovereignty belongs to Cuba. The United States occupies the base under a colonial-era lease, essentially perpetual, that gives it complete jurisdiction and control to the exclusion of any other sovereignty. The government knew that there was a risk that the courts would reject this legal theory of unaccountability. Even the Office of Legal Counsel recognized that some courts had held that Haitian refugees detained at Guantanamo in the early 1990s were protected by the Constitution, but the government was optimistic that these rulings would not be repeated.^_[3]  The government continues to argue that Guantanamo is extraterritorial and therefore beyond the reach of constitutional law, statutory rights, and human rights treaties.

Deliberately setting up a prison camp in a lawless enclave was an invitation to abuse. The abuses have predictably followed, despite the government's Orwellian assurances that prisoners are treated "humanely." The educated public, having witnessed the mendacity of the torture memos and numerous other evasive denials, knows how to read such assurances.

Not all the prisoners brought to Guantanamo were captives from the war in Afghanistan. Some have been abducted from Europe or Africa. The laws of war may permit detention of enemy soldiers, but they do not license the abduction of allied nationals from allied states and detention without hearing or recourse based solely on the suspicions of the President and his delegates.

The Supreme Court rejected the Executive's construction of Guantanamo in Rasul v. Bush,^_[4] and again in Hamdan v. Rumsfeld.^_[5] In Rasul, the Court upheld federal habeas corpus jurisdiction to inquire into the lawfulness of the detention of foreign nationals at Guantanamo. The majority observed that holding petitioners there in prolonged executive detention, without access to counsel and without being charged with any wrongdoing, would unquestionably violate U.S. law.^_[6] In Hamdan, the Court exercised that jurisdiction and found unlawful the Executive's system for trying prisoners by means of military commissions that violated congressional statutes and international law.

The government refuses to accept the teachings of these cases and pressured Congress to enact the Military Commissions Act to undercut the rule of law at Guantanamo.^_[7] That statute does many things, but it will undoubtedly go down in history for its assault on the writ of habeas corpus. As the government interprets the statute, it permanently abrogates the writ for any foreign national, at any location, determined by the Executive to have been properly detained as an enemy combatant, regardless of whether any other judicial remedy exists for examining the lawfulness of the detention.^_[8] The statute represents a vast threat of irremediable arbitrary detention to the tens of millions of non-citizens residing in the United States and to any other foreign national whom the government chooses to abduct abroad based on faulty intelligence or mistaken identity.

Congress has the limited power to suspend the privilege of the writ of habeas corpus temporarily, "when in Cases of Rebellion or Invasion the public Safety may require it."^_[9] But the Military Commissions Act does not involve an exercise of that power: Congress made no finding of rebellion or invasion in 2006, nor could it have done so, and the withdrawal of habeas jurisdiction was deliberately permanent. Congress has no power to permanently abrogate the writ.^_[10]

Mr. Bellinger defends this abrogation by claiming that "[a]liens captured outside the United States never had a constitutional right to habeas corpus."^_[11] He is mistaken. The guarantee of the writ protects every prisoner in the United States. In the Anglo-American tradition, habeas corpus is available for inquiring into the lawfulness of the detention of non-citizens brought involuntarily within the national territory, whether as extradited criminal defendants, slaves, interdicted refugees, maritime drug smugglers, or purported prisoners of war.^_[12] Of course, if the detention is lawful, then the writ provides no remedy. But lawfulness has to be determined by the court. In the eighteenth century, the British courts employed the writ to examine the lawfulness of detention of foreign sailors brought to England as prisoners of war.^_[13] In the twentieth century, U.S. courts employed the writ to examine the lawfulness of detention of German nationals expelled from Latin America and brought to the United States as dangerous enemy aliens.^_[14] As Justice Sandra Day O'Connor wrote, "absent suspension, the writ of habeas corpus remains available to every individual detained within the United States."^_[15]

The government seeks to circumvent this principle with its usual argument that Guantanamo is extraterritorial and beyond the reach of the Constitution. To the contrary, Guantanamo is the United States. It has become the face that the United States presents to too much of the world. As Justice Anthony Kennedy emphasized in his concurring opinion in Rasul, "Guantanamo Bay is in every practical respect a United States territory."^_[16] The United States owes legal protection to any prisoners it detains there.

The anomalous regime that the government seeks to maintain at Guantanamo should be terminated. It serves no legitimate purpose. Whatever can be done only at Guantanamo should never have been done at all.

[1] This article is a response to John B. Bellinger, Remarks on the Military Commissions Act, 48 Harv. Int'l L.J. Online 1 (2007), http://www.harvardilj.org/online/91.

[3] See Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Att'ys Gen., Office of Legal Counsel, U.S. Dep't of Justice, to William J. Haynes, II, Gen. Counsel, U.S. Dep't of Def., "Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba" 6-8 (Dec. 28, 2001), available at http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/01.12.28.pdf.

[4] Rasul v. Bush, 542 U.S. 466 (2004).

[7] Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600.

[8] See, e.g., Respondent-Appellee's Motion to Dismiss for Lack of Jurisdiction and Proposed Briefing Schedule, Al-Marri v. Wright, No. 06-7427 (4th Cir. Nov. 13, 2006).

[10] See Gerald L. Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr, 33 Colum. Hum. Rts. L. Rev. 555, 562-87 (2002).

[11] Bellinger, supra note 1, at 9.

[12] See, e.g., Fiocconi v. Att'y Gen., 462 F.2d 475 (2d Cir. 1972), cert. denied, 409 U.S. 1059 (1972) (extradition); Somerset v. Stewart, 98 Eng. Rep. 499 (K.B. 1772) (slave); Eskite v. Dist. Dir., 901 F. Supp. 530 (E.D.N.Y. 1995) (refugee); Robinson-Munoz v. United States, 819 F. Supp. 1136 (D. P.R. 1993) (smuggler, proceeding under 28 U.S.C. § 2255). For prisoners of war, see infra note 13.

[13] See, e.g., Case of Three Spanish Sailors, 2 W. Bl. 1324, 96 Eng. Rep. 775 (C.P. 1779); R v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K.B. 1759).

[14] See, e.g.,United States ex rel. Von Heymann v. Watkins, 159 F.2d 650 (2d Cir. 1947).

[15] Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (plurality opinion).

[16] Rasul, 542 U.S. at 487 (Kennedy, J., concurring in the judgment).

The Declining Significance of POW Status

by: Derek Jinks

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The author is Visiting Professor of Law, University of Chicago Law School; Associate Professor of Law Designate, Arizona State University College of Law. M.Phil., Yale University, 1999; J.D., Yale Law School, 1998; M.A., Yale University, 1998; B.A., University of Texas at Austin, 1991.

Volume 45, Issue 2 (Summer 2004)

What is the significance of prisoner-of-war (POW) status? Drawing on the substance, universal acceptance, broad-based institutionalization, and enforcement machinery of the Geneva Convention for the Protection of Prisoners of War ("POW Convention"), conventional wisdom maintains that denial of POW status to combatants has drastic protective and policy consequences. Contrary to this conventional wisdom, this Article argues that denial of POW status carries few protective or policy consequences, and that the gap in protection for those classified as POWs and those not so classified (e.g., those designated "unlawful combatants") is closing. The only gaps that persist are: (1) that POWs are "assimilated" into the legal regime governing the armed forces of the detaining state; and (2) that POWs enjoy "combatant immunity." The scope and significance of these gaps are, however, also diminishing-from both a protection and policy perspective. The Article further argues that this emerging "protective parity" has important implications for humanitarian law and policy: (1) it clarifies and consolidates debates about coverage gaps in the Geneva law; (2) it recasts debates about the proper procedure for determining "status" in humanitarian law(procedurally, POW status might be understood only as an affirmative defense to any prosecution for simple participation in hostilities); and (3) it underscores the escalating inefficiencies of approaches that calibrate treatment based on complex status determinations (and, in doing so, provides an explanation of why some states-including the United States-expressly incorporate elements of "protective parity" into their military policy). Finally, the Article offers a normative defense of "protective parity"-emphasizing whether it can be reconciled with the principle of distinction.

Conventional wisdom maintains that denial of POW status to captured combatants has drastic consequences for the scope of applicable humanitarian protections. Indeed, the prevailing view is that denying captured enemy combatants POW status places them "at the mercy of the detaining power." The ground-breaking Lieber Code of 1863, issued by President Abraham Lincoln as General Order 100 governing the conduct of U.S. forces in the Civil War, provided that persons engaged in hostilities without satisfying the requirements for POW status could be captured and summarily shot. The Hague Regulations of 1907 provided that the rights and obligations of war applied only to persons satisfying the criteria for POW status. Although no U.S. court has had occasion to address the question directly, some courts have suggested that the government may treat "unlawful combatants" summarily. Many foreign courts have expressly supported this view. Similar views are espoused by many commentaries, including several important treatises on the laws of war. In short, it is generally believed that the denial of POW status carries drastic protective consequences for captured combatants-some suggesting that denial of this status leaves captured combatants unprotected by the law of war.

Who's Got the Title? or, The Remnants of Debellatio in Post-Invasion Iraq

by: Melissa Patterson

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The invasion of Iraq by the British and U.S.-led Coalition forces in March 2003 silently effected debellatio, the ancient doctrine by which a military victor takes title to territory in which the defeated government has ceased to function. The Coalition governments' failure to recognize it as such and to invoke the attendant legal consequences enabled destructive chaos on the ground and created a troubling precedent for the application of international law to any future exercise of one sovereign state's authority within the geographical boundaries of another sovereign state. The Coalition forces ostensibly acted pursuant to the international law of occupation, but the legal framework ultimately agreed upon and actually utilized in post-invasion Iraq more closely resembles debellatio. Though this doctrine traditionally is associated with conquest and annexation, it need not be; as updated by modern ideas of self-determination and what I call "sovereign identity," it is in fact the extant doctrine most consistent with the factual and legal situation caused by the invasion.

In what was perhaps an understandable bid to constrain U.S. and British power, the United Nations labeled the Coalition "occupying powers," thereby invoking the body of international occupation law traditionally applicable only to foreign authorities assuming "temporary managerial powers" over another sovereign's territory during which "limited period" the foreign force may not "bring about by itself a valid transfer of authority." The application of this body of law to the Coalition presence in Iraq was a poor choice, however, given the Coalition's nation-building aspirations and may have stemmed in part from a perceived unavailability of any other plausible body of international law, given scholarly assertions that debellatio, the international legal doctrine that best fits the factual and legal situations existing after the Coalition's invasion, was defunct. This Note argues that occupation law is fundamentally inconsistent with the Coalition's post-invasion exercise of power within Iraq and that, as contextualized within the modern regime of human rights law, a modern doctrine of debellatio much better comports with the Coalition's authority in post-invasion Iraq.

In Part I of this Note, I explain why occupation law is poorly tailored to nation-building and highlight some of the consequences of its application in Iraq for the occupiers, the occupied, and the evolution of occupation doctrine. In Part II, I make a case for the legal viability of a modern doctrine of debellatio consistent with both the right of a people to self-determination and the idea that sovereignty may not be taken by force. In Part III, I argue that the legal framework under which the Coalition Provisional Authority ("CPA") actually operated through the chaotic post-invasion phase that created further divisions among the Iraqi people is something more than traditional occupation law but something much less than the ancient tradition of annexation via debellatio; it is a legal framework best supported by a modern doctrine of debellatio that allows the occupier to take contingent, temporary title to the territory in which the vanquished government formerly operated. Finally, in Part IV, I outline the advantages of acknowledging a modern doctrine of debellatio.

Women's September 11th: Rethinking the International Law of Conflict

by: Catharine A. MacKinnon

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The author is the Elizabeth A. Long Professor of Law, University of Michigan Law School, and Fellow, Center for Advanced Study in the Behavioral Sciences, Stanford, Cal., 2005-2006.

Volume 47, Number 1 (Winter 2006)

Introduction

The configuration of acts and actors of September 11, 2001 is not one that international law, centered on states, has been primarily structured to address. Neither was most of men's violence against women in view when the laws of war, international humanitarian law, and international human rights guarantees were framed. The formal and substantive parallels between the two-prominently their horizontal legal architecture, large victim numbers, and masculine ideology-make both patterns of violence resemble dispersed armed conflict, but the world's response to them has been inconsistent.

Since September 11th, the international order has been newly willing to treat nonstate actors like states as a source of violence invoking the law of armed conflict. Much of the international community has mobilized forcefully against terrorism. This same international community that turned on a dime after September 11th has, despite important initiatives, yet even to undertake a comprehensive review of international laws and institutions toward an effective strategic response to violence against women with all levels of response on the table, even as the "responsibility to protect" from gross and systematic violence is increasingly emerging internationally as an affirmative duty. The post-September 11th paradigm shift, permitting potent response to massive nonstate violence against civilians in some instances, exemplifies if not a model for emulation, a supple adaptation to a parallel challenge. It shows what they can do when they want to. If, in tension with the existing framework, the one problem can be confronted internationally, why not the other?

This section of the Military Commissions Act is only one of several that undermine the legal prohibition on torture by giving a free pass to various forms of "torture lite"-outrages on personal dignity, or cruel, inhuman, humiliating, and degrading treatment. What exactly do I mean by "torture lite"? Think about the pile of naked prisoners at Abu Ghraib. Think about the memorable shot of the terrified prisoner with a snarling dog in his face. Think of little Lyndie England leading her prisoner around on a dog leash. 

Think these events were limited to a few bad apples on the night shift at Abu Ghraib? Then think again and look at the Army's own report about authorized interrogation techniques at Guantanamo.^_[4] And keep in mind that Guantanamo is the detention center we did let the International Committee of the Red Cross visit.^_[5]

The Military Commissions Act retroactively amends the War Crimes Act to immunize from punishment officials who engaged in, supervised, or condoned this sort of "torture lite." It accomplishes this in an ironically titled section that purports to be an "implementation" of our treaty obligations.^_[6] This section repeals the portion of the War Crimes Act that actually did implement our treaty obligations by criminalizing conduct prohibited by Common Article 3 of the Geneva Conventions.^_[7] Common Article 3, which the U.S. Supreme Court found applicable to detainees in the "war on terror" in Hamdan v. Rumsfeld, prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."^_[8] In its place, the Military Commissions Act prohibits "cruel or inhuman treatment." Although it doesn't sound so different, that term is narrowly defined as acts "intended to inflict severe or serious physical or mental pain or suffering."^_[9][10] Serious mental harm is defined retroactively to include only "prolonged mental harm" caused by severe physical pain, threats of imminent death, or administration of profoundly disruptive drugs.^_[11] "Serious physical pain or suffering" is in turn defined as "bodily injury that involves" either "a substantial risk of death," "extreme physical pain," "a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises)," or "significant loss or impairment of the function of a bodily member, organ, or mental faculty."

So, a beating that leaves only some minor cuts and bruises, or a minor cigarette burn on the thigh would be acceptable? Subjecting prisoners to sexual humiliation doesn't violate the Geneva Conventions? Water-boarding gets a free pass because the prisoner only thinks for a short time that he will be drowned? The definition of the crime here is so narrow that it could have been written by the authors of the infamous Torture Memo. Even they agreed that organ failure constituted torture.

Even worse, the discredited Torture Memo lives on in the Military Commissions Act, which incorporates a portion of the Detainee Treatment Act of 2005 that provided that "good faith reliance on advice of counsel" that interrogation practices were not unlawful could serve as an affirmative defense in a criminal prosecution for abuse of detainees.^_[12]

Why should we care about cruelty to suspected terrorists? As one member of Britain's high court put it in invalidating the use of evidence obtained through torture, the ancient common law that both our nations share rejected torture not only because of its effect on the prisoner, but also because of its effect on the torturer-because of the "belief that it degraded all those who lent themselves to the practice."^_[13] It is not merely the unreliability of such evidence, but that its use would "involve the State in moral defilement."^_[14]  

Since the Military Commissions Act also provides that no "foreign or international law shall supply a basis for a rule of decision" in interpreting the War Crimes Act,^_[15] perhaps, we should set aside the opinions of our common-law brethren for the moment and look exclusively to U.S. opinions. In a decision holding that the Due Process Clause requires the exclusion of evidence obtained through methods that "shock the conscience," the U.S. Supreme Court explained that to admit such evidence "would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society."^_[16] 

Similarly, the former general counsel of the U.S. Navy, General Alberto Mora, explained why Americans should be concerned about cruelty that may not meet the technical definition of torture:

Cruelty disfigures our national character. It is incompatible with our constitutional order, with our laws, and with our most prized values. Cruelty can be as effective as torture in destroying human dignity, and there is no moral distinction between one and the other. To adopt and apply a policy of cruelty anywhere within this world is to say that our forefathers were wrong about their belief in the rights of man, because there is no more fundamental right than to be safe from cruel and inhumane treatment. Where cruelty exists, law does not.^_[17]

Common Article 3's prohibition of outrages on personal dignity goes to the fundamental purpose of a legal system. In the wake of World War II, the Charter of the United Nations made the protection of human dignity one of the core aims of the international system,^_[18] and the Universal Declaration of Human Rights proclaimed that protection 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."^_[19] The drafters of these instruments recognized that once government begins to disregard the humanity of those under its control, violations of fundamental rights are inevitable. 

In proclaiming Human Rights Day in December 2004, President George W. Bush stated that "[f]reedom and dignity are God's gift to each man and woman in the world."^_[20] Our laws should reflect that belief.

[1] This article is a response to John B. Bellinger, Remarks on the Military Commissions Act, 48 Harv. Int'l L.J. Online 1 (2007), http://www.harvardilj.org/online/91.

[2] Military Commissions Act of 2006, Pub. L. No. 109-366, sec. 6(c)(2), 120 Stat. 2600, 2635.

[3] Military Commissions Act of 2006, §§ 948r(c), (d).

[4] U.S Department of Defense, Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility 16, 19, 24, (2005), available at www.defenselink.mil/news/Jul2005/d20050714report.pdf.

[5] See Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005, at A01.

[6] The Act also undermines the Geneva Conventions by providing that they may not be invoked as a source of rights in habeas cases or other civil actions. See Military Commissions Act of 2006, § 948b(g), sec. 5(a). The Act also gives the President the authority to define non-grave breaches of the Conventions. See Military Commissions Act of 2006, sec. 6(a)(3).

[7] Military Commissions Act of 2006, sec. 6(b) (repealing 18 U.S.C. § 2441(c)(3)).

[8] See Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; see also Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

[12] Military Commissions Act of 2006, sec. 8(b) (applying 42 U.S.C. § 2000dd-1).

[13] A v. Sec'y of State for the Home Dep't [2005] UKHL 71, at para. 11.

[14] Id. at para. 17 (quoting the Supreme Court of Ireland in People v. O'Brien, [1965] I.R. 142, 150).

[15] See Military Commissions Act of 2006, sec. 6(a)(2). Even Justice Scalia, a noted opponent of the use of foreign sources in interpreting the U.S. Constitution, believes that they are relevant to interpreting multi-lateral treaties like the Geneva Conventions. See Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) ("When we interpret a treaty, we accord the judgments of our sister signatories ‘considerable weight.'").

[16] Rochin v. California, 342 U.S. 165, 173-74 (1952).

[17] Alberto J. Mora, former U.S. Navy Gen. Counsel, Acceptance Speech by Alberto Mora (May 22, 2006), available at http://www.jfklibrary.org/Education+and+Public+Programs/Profile+in+Courage+
Award/Award+Recipients/Alberto+Mora/Acceptance+Speech+by+Alberto+Mora.htm.

[19] Universal Declaration of Human Rights pmbl., G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948). See also Press Release, George W. Bush, Human Rights Day, Bill of Rights Day, and Human Rights Week, 2004 (Dec. 10, 2004), available at http://www.whitehouse.gov/news/releases/2004/12/20041210-17.html ("After the tragedies of World War II, the United Nations General Assembly adopted the Universal Declaration of Human Rights as part of a global effort to curb the cruelty and systematic injustice that had destroyed so many lives.... In the time since, progress has been made in ensuring that human dignity is respected, and we have witnessed the rise of democratic governments around the world.").

[20] Id.

Legal interpretation, Robert Cover argues, cannot be understood separately from the violence of the judge: "A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life."^_[2] Following Cover, this short article attempts to expose this violence and to bring its victims to the center of the discussion of Barak's jurisprudential legacy-those very victims that the "activist-judge" is supposed to be crusading to defend. Indeed, any assessment or evaluation of Barak's legacy will be incomplete and inaccurate without assessing the impact of Barak's legacy on the Palestinians in the OPT.^_[3] I would like to contextualize Barak's legacy as internal to a framework of domination and subordination within which he, as a former judge in the Israeli judicial system, operated. Barak as a leading judge and as a Chief Justice did not only work within this framework but also has justified it, refined it, and explained and represented it as a "diplomat-judge."

My emphasis will be less on what Barak has said and written, but rather on what he has done, the impact of his opinions on the victims he has left behind, and the alternative narratives he has so powerfully destroyed. The primary source of the distortion in discussing Barak's legacy rests on the emphasis on his "liberal" rhetoric while at the same time ignoring the illiberal outcomes of his Supreme Court opinions. As will become apparent in the course of this article, Barak's legacy is not liberal in any convincing way. The article will also highlight the totally ignored aspect of Barak's work as a "diplomat-judge": a judge who is the main representative of his state's policies abroad.         

Justice Barak has employed a manifold of interconnected legal and rhetorical strategies within his judicial review to allow the evolution of this oppressive system. As I explain and demonstrate below, these strategies include oppression-blind jurisprudence, concealment of the general context, fragmentation of reality, the practice of non-intervention and submission to dubious "security" considerations disguised rhetorically by "balancing" and "proportionality" tests, and declining to provide meaningful and timely legal remedies.

The legal reasoning of Justice Barak and his Court, according to David Kretzmer, exemplifies the attitude of a "benevolent occupation," within which the "belligerent occupier" transforms rhetorically his interests into the interests of the local population (or the "protected persons") while ignoring the broader political context.^_[17]

Kretzmer also points out that Barak's rhetoric on widening the scope of judicial review did not bring with it any significant change in the ISC's willingness to interfere in security-based decisions. Indeed, even in the torture case of 1999^_[18] - widely perceived as a departure from the Court's policy of non-intervention and considered by many as the main case where Barak challenged the security establishment - Barak expressed his identification with the security considerations. This identification explains why the Court delayed its decision for years, though knowing that torture had become a widespread practice not limited to "ticking bomb" situations, and refused to grant (or revoked) interim injunctions preventing torture in spite of the clarity of the legal position.^_[19] The limited nature of the decision, which legitimated some interrogation practices through the "necessity" defense, and the reluctance of the Court can also explain, even if only partially, the fact that evidence of torture still exists in the wake of this ruling.^_[20]

Ardi Imseis exposes the limited scope of Barak's decision: the Court did not examine all the interrogation methods of the General Security Service (GSS) and did not obligate the state to disclose all these methods for the purpose of judicial examination.^_[21] It ruled only regarding five physical interrogation methods.^_[22] It also did not examine interrogation methods by state organs other than the GSS, such as the Israeli army itself, and it did not examine the treatment of Palestinian detainees in the period between detention and interrogation.^_[23] Furthermore, Imseis points out two additional shortcomings of Barak's decision. First, Imseis notes the Court's "overly simplistic contextualization of the case before it as merely requiring a balance between respecting the liberty rights of ‘hostile terrorists' and protecting the ‘security' of the state."^_[24] Second, the Court outlawed the specific interrogation methods under review because they were not authorized by Israeli law, not because they amount to torture or because they violate international law.^_[25] Additionally, Barak ignored the question of the effect-or more accurately, the lack thereof-of this ruling on all the past rulings in which the Court legitimated torture. Specifically, he completely ignored the claims of Palestinian torture victims, who had been doubly victimized, first by GSS torture, then by the Court's string of legitimating decisions up to 1999.^_[26] Indeed, the ISC's inadequate response to torture "calls into question the very notion of the ‘rule of law' in a democratic society."^_[27]         

One of the most devastating examples of this oppression-blind approach of non-intervention due to security considerations was, without a doubt, the Court's unwillingness to reject the policy of punitive home demolitions, wherein the houses of families of suspected security offenders were demolished. Under both Meir Shamgar's and Barak's presidencies, the Court granted the security establishment virtual carte blanche to destroy Palestinian houses and refused to characterize it as a form of collective punishment prohibited by international law.^_[28] Legal interpretation could have been a handy device to limit and restrict these demolitions if there had been a willing judge. But both Shamgar and Barak were unwilling. The main argument that the Court used - adopting the security establishment's reasoning - was "deterrence."^_[29] In 2003 and 2005, however, two internal military committees formed by the Israeli army concluded that "no effective deterrence was proven," and that "deterrence, limited if at all, paled in comparison to the hatred and hostility toward Israel that the demolitions provoked among the Palestinians."^_[30] The committees recommended ending this policy. Moreover, even if we assume that this draconian policy was effective, that does not mean that the policy of home demolitions is permissible under international law.^_[31]

The fact that Justice Mishael Cheshin, a generally conservative judge, has represented a dissenting view within the Court by opposing punitive home demolitions in some cases indicates that Barak could have taken another path, a more rights-minded one. Barak, however, chose to affirm state power. This position is also clear upon examining Barak's rulings concerning the massive home demolitions during military operations in the second intifada.     

The ruling on the expulsion of 415 Palestinians from the OPT into Lebanon in December 1992 by the Yitzhak Rabin government remains the most striking example of the ISC's capitulation to state security officials with no regard for due process and human rights.^_[32] The Court issued a unanimous decision legitimating the mass expulsion of these Palestinians, who had not had a legal hearing prior to their expulsion. The Court ruled, ex post facto, that the deportees had had a formal right to a hearing, and it did not prevent, or even criticize, the deportations. After initially having issued an interim injunction to stop the deportation process and having adopted the position that the deportations were illegal in the Court's internal deliberations, Barak capitulated to Chief Justice Shamgar's pressure.^_[33] According to Nomi Levitsky, Barak later regretted his ultimate position.^_[34] Unfortunately his sense of regret did not evolve into a jurisprudence of regret. In fact, Barak continued this tradition of submitting to "security" considerations. For instance, in the Ajori case in 2002, Barak allowed the deportation of Palestinians from the West Bank to the Gaza Strip.^_[35]

We can find further evidence of that same approach in Barak's later rulings where we again see the Court's reluctance to deliver a remedy to the petitioners in real time. The main petition against the extrajudicial executions ("targeted assassinations" in the Israeli jargon), to take one example, was delayed for years while the policy continued on the ground. At the end of the day, Barak decided that these extrajudicial executions are not always permissible and not always prohibited.^_[36] The army understood the ruling as validating its current policies.^_[37] Barak, of course, could have chosen another path. In an expert opinion submitted to the Court, international law scholar Antonio Cassese argued that "killing civilians suspected of terrorism, while they are not engaged in military action," is a war crime.^_[38]         

While the International Court of Justice (ICJ) decided in an advisory opinion that the separation wall Israel is building is illegal as a whole insofar as it is built inside the OPT, and that it should be dismantled,^_[39] Barak decided to take a different approach. Declaring his "factual superiority" over the ICJ, Barak refused to rule on the general legality of the separation wall. Instead, he decided that there should be an examination of specific portions of the wall while "balancing" between security needs and Palestinian rights and examining the "proportionality" of the means.^_[40] While the ISC rejected some of the first portions of the separation wall presented to it, the Court eventually approved most of the other portions in a series of later petitions.^_[41] The same legal strategy has been used in answering the question of the legality of the Israeli settlements inside the OPT.^_[42] In both situations, the ISC legitimated the overall project.^_[43] Unlike the ICJ, the ISC refrains from addressing what it considers to be "general" questions. Thus, neither the "general" framework of oppression nor the "general" means of oppression can be successfully challenged in the Court.

The Court fragments reality into small pieces and conceals the generality of oppression while stripping it from its background and context.^_[44] Despite four decades of continued occupation, Barak has never addressed the occupation directly; had he done so he might have reached the conclusion that the very system of the Israeli occupation is itself "intrinsically illegal" and amounts to a de facto annexation,^_[45] or that the colonies in the OPT (including the annexation of East Jerusalem) are an illegal project.^_[46]                      

Leon Sheleff has argued that the ISC is activist inside Israel proper but not in the OPT.^_[48] This paradigmatic distinction in the Court's approach rests on a false assumption that Israel can sustain a democratic regime inside its borders unaffected by its oppressive practices in the OPT. In reality, however, the internal processes of Israeli society went hand-in-hand with the continuous evolution of the occupation regime and its internal logic. Indeed, as Baruch Kimmerling has argued, Israel and the OPT should be seen as one control system.^_[49] Accordingly, Hassan Jabareen argues that "Barak cannot draw a line between himself and the Palestinians."^_[50] In other words, Barak cannot separate himself from his Other. He cannot seriously claim that he is a democratic judge without regard of his legacy in the OPT. 

Needless to say, security in the final analysis is not a neutral notion; rather it is part and parcel of the ideology of the state as a Jewish and Zionist state. Thus, submission to security-based arguments is another demonstration of submission to state ideology.

The complicity of Israeli judges in the occupation is also apparent in the symbolic power they exercise and the symbolic capital they possess. These are used and invested by the judges and by the state to legitimate existing power relations and conceal their oppressive nature. In this case, the "activist-judge" becomes an activist of the oppressive system. He is an essential part of it. His symbolic power and his symbolic capital are constituted by power relations. The judge, in his turn, constitutes these relations by reproducing them as legitimate. Undoubtedly, Barak and Israel were aware of his symbolic power. In this sense, Barak served as a "diplomat-judge." Israel has used Barak's rhetoric before U.N. human rights bodies and turned him into "Israel's public defender abroad."^_[51] In July 2004 following the ISC's decision on the separation wall and before the ICJ's ruling, Prime Minister Ariel Sharon declared that, "the stature of the Israeli Supreme Court and of its president Justice Aharon Barak in the world [makes] their rulings helpful to us at The Hague. They provide a legal rejoinder."^_[52] In a separate instance, Barak similarly defied international norms and admitted that the ISC's judicial review helps Israeli soldiers by making it harder for the International Criminal Court to try them.^_[53] Another illustration of Barak's awareness of his role as a "diplomat-judge" is the fact that his ruling on the separation wall was delivered several days before the ICJ's ruling and immediately translated into English.  

One wonders, upon examining Barak's statements and judicial legacy, if his change-of-office from the legal advisor of the government - Attorney General - to Supreme Court justice was at all accompanied by a change-of-paradigm in his perception of his role.

Barak has emphasized in his rulings the security situation that Israel faces and his identification with its security concerns. Palestinian organizations sew destruction and terror, according to his description. Thus, Israel has the right and obligation to defend its citizens. It is a "defensive democracy" reacting to attacks. This reasoning holds not only for Israel but for other democratic countries that now face the same situation.^_[57] Barak sees no difference between the prolonged Israeli occupation and the situation of Western democracies. Israel in his story is a passive victim without a political agency. The intifada is too easily and uncritically characterized by Barak as a form of "terrorism." No attention is paid to the period that preceded the outbreak of the intifada; and no attempt is made to understand the causes that led to its outbreak. In short, it is terrorism without context, violence without reason. The "balancing" that the judge invokes is between (Israeli) "security needs" and (Palestinian) "individual rights."^_[58] The context of occupation and the right of self-determination is not allowed to enter the juridical picture. In fact, Barak and his Court have never used the word "occupation" (kibbush in Hebrew) in their rulings. The Court translates the English phrase "belligerent occupation" into the Hebrew tfisah lohmatit ("belligerent possession") leaving the word occupation out. Likewise, the phrase "occupied territories" is never used by the Court, but rather ha-Ezur ("the Area"). For the Court, the occupation does not exist.      

What Barak's description ignores and conceals is the destructive effect of the subjugation of life by the power of death in late colonial regimes.^_[59] Achille Mbembe argues that the "most accomplished form of necropower [power of death] is the contemporary colonial occupation of Palestine" since it combines "the disciplinary, the biopolitical, and the necropolitical."^_[60] "To live under late modern occupation," writes Mbembe, "is to experience a permanent condition of ‘being in pain.'"^_[61]      

Instead of weakening this grip of the occupation's power-of-death on the daily life of the Palestinians by defending human rights, Barak and the ISC allowed the development of the occupation machine. The Court's narration of violence has deliberately erased all traces of the production of death and destruction by the occupation. Moreover, the Court has provided the legal reasoning required for its justification. This justification coupled with the illusion of the Palestinian voice being heard in the Court and the availability of an option for "legal remedy" resulted in legitimating the occupation. The Israeli historian Tom Segev writes:

An eminent, liberal, sympathetic and paternal jurist who did not hold himself above the people, Barak also gave the horrors of the oppression a legitimate front; decent people can tell themselves that if Barak could live with the occupation, then so can they. His guilt is therefore greater than that of the people doing the dirty work out in the field.^_[62]                                                       

[1] Franz Kafka, In the Penal Colony, in The Metamorphosis and Other Stories 116 (Malcolm Pasley trans., 1992).

[2] See Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986).

[3] Due to lack of space, this article will not deal with Barak's attitudes toward the Palestinian citizens of Israel. An examination of these attitudes would reveal that Barak's ethnocentric framing of the issues and submitting equality to Jewishness as the Grundnorm largely go unnoticed and unscrutinized.  

[4] See e.g., Raja Shehadeh, Occupier's Law: Israel and the West Bank (1988).

[5] See e.g., B'Tselem, Free Rein: Vigilante Settlers and Israel's Non-Enforcement of the Law (2001), available at http://www.btselem.org/Download/200110_Free_Rein_Eng.pdf; B'Tselem, Forbidden Roads: The Discriminatory West Bank Road Regime (2004), available at http://www.btselem.org/Download/200408_Forbidden_Roads_Eng.pdf.

[6] See e.g., Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (2005).

[7] See e.g., Amnesty International, Israel and the Occupied Territories: Under the Rubble: House Demolition and Destruction of Land and Property (2004), available at http://web.amnesty.org/library/index/ENGMDE150332004.

[8] See e.g., Public Committee Against Torture in Israel & LAW - The Palestinian Society for the Protection of Human Rights and the Environment, Mdeneyot ha-Hesulim shel Mdenat Yisrael, November 2000 - Yanuar 2002 [The Assassinations Policy of the State of Israel, November 2000 - January 2002] (2002), available at http://www.stoptorture.org.il//heb/images/uploaded/publications/46.doc. 

[9] See e.g., B'Tselem and Hamoked, Families Torn Apart (1999), available at http://www.btselem.org/Download/199907_Families_torn_apart_Heb.pdf.

[10] See e.g., It's the Little Things That Make an Occupation, The Economist, Jan. 20, 2007, at 64.

[11] See e.g., B'Tselem, Behind the Barrier: Human Rights Violations as a Result of Israel's Separation Barrier, Position Paper (2003), available at http://www.btselem.org/Download/200304_Behind_The_Barrier_Eng.pdf.

[12] See e.g., FIDH, Palestinian Detainees in Israel: Inhuman Conditions of Detention (2003), available at http://www.fidh.org/IMG/pdf/ps365a.pdf.

[13] See e.g., B'Tselem, Deportation of Palestinians from the Occupied Territories and the Mass Deportation of December 1992 (1993), available at http://www.btselem.org/Download/199306_Deportation_Eng.doc.

[14] See e.g., B'Tselem, Collective Punishment in the West Bank and the Gaza Strip (1990), available at http://www.btselem.org/Download/199011_Collective_Punishment_Eng.pdf.

[15] See B'Tselem, Trigger Happy: Unjustified Shooting and Violation of the Open-Fire Regulations during the al-Aqsa Intifada (2002), available at http://www.btselem.org/Download/200203_Trigger_Happy_Eng.pdf.

[16] See generally Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, John Dugard, U.N. Doc A/HRC/4/17 (Jan. 29, 2007), available http://ap.ohchr.org/documents/dpage_e.aspx?m=91.  

[17] David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 68-71 (2002).

[18] HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel [1999] IsrSC 53(4) 817.

[19] Kretzmer, supra note 17, at 141-42.

[20] See e.g., Public Committee Against Torture in Israel, Back to a Routine of Torture: Torture and Ill-Treatment of Palestinian Detainees during Arrest Detention and Interrogation, September 2001 - April 2003 (2003), available at http://www.stoptorture.org.il//eng/images/uploaded/publications/58.pdf.

[21] Ardi Imseis, "Moderate" Torture On Trial: Critical Reflections on the Israeli Supreme Court Judgment Concerning the Legality of the General Security Service Interrogation Methods, 19 Berkeley J. Int'l L. 328, 341-43 (2001).

[22] Id.

[23] Id.

[24] Id. at 349.

[25] Id. at 346.

[26] Cf. Gideon Levy, Good Morning, High Court, Haaretz, April 16, 2000 ("Who will pay reparations to the tens of thousands of people who were tortured with your authorization before torture became illegal and thus immoral?")

[27] Barak Cohen, Democracy and the Mis-Rule of Law: The Israeli Legal System's Failure to Prevent Torture in the Occupied Territories, 12 Ind. Int'l & Comp. L. Rev. 75, 76 (2002).

[28] See Dan Simon, The Demolition of Homes in the Israeli Occupied Territories, 19 Yale J. Int'l L. 1, 4 (1994). Simon mentions that in the period 1979 to 1994 the Supreme Court issued 94 rulings dealing with house demolitions: "The Court's record displays almost uniform support of the practice .... The Supreme Court's approach of demolitions in the face of legal and moral challenges has corrupted Israeli law and has undermined the legitimacy of the Court itself." Id. See also Kretzmer, supra note 17, at 162.

[29] Kretzmer, supra note 17, at 161-62.

[30] Amos Harel, IDF Panel Recommends Ending Policy of House Demolitions, Haaretz, Feb. 17, 2005.

[31] See Martin Carroll, The Israeli Demolition of Palestinian Houses in the Occupied Territories: An Analysis of its Legacy in International Law, 11 Mich. J. Int'l L. 1195 (1990).

[32] HCJ 5973/92 The Association for Civil Rights in Israel v. Minister of Defense [1993] IsrSC 47(1) 267.

[33] Nomi Levitsky, Kevodo: Aharon Barak: Biyografyah [Your Honor: Aharon Barak: A Biography] 183-87 (2001).

[34] Id. at 188.

[35] HCJ 7015/02 Kifah Ajori v. IDF Commander in Judea and Samaria [2002] IsrSC 56(6) 352, available at http://www.court.gov.il/heb/home.htm.

[36] HCJ 769/02 The Public Committee Against Torture in Israel et. al. v. The Government of Israel et. al. [2006] [hereinafter Extrajudicial Executions Policy Case], available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM.

[37] Scott Wilson, Israeli High Court Backs Military On Its Policy of ‘Targeted Killings', The Wash. Post, Dec. 15, 2006; Hanan Greenberg, Military Advocacy Relieved over Targeted Killing Ruling, Ynet, Dec. 14, 2006.

[38] Antonio Cassese, Expert Opinion on Whether Israel's Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law, 20, available at http://www.stoptorture.org.il//eng/images/uploaded/publications/64.pdf.

[39] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,2004 I.C.J. 136, available at http://www.icj-cij.org/docket/files/131/1671.pdf [hereinafter Advisory Opinion].  

[40] HCJ 2056/04 Local Municipality Beit Sureik and others v. The Government of Israel [2004] IsrSc 58(5) 807; and HCJ 7957/04 Zahran Mara'abeh et. al. v. Prime Minister of Israel et. al. [2005], available at http://elyon1.court.gov.il/files/04/570/079/a14/04079570.a14.pdf.  

[41] See e.g., HCJ 4289/05 Local Municipality Beer Nabalah and 149 others v. Government of Israel [2006], available at http://www.court.gov.il/heb/home.htm; HCJ 11395/05 Maamon Kayed, Head of the Local Municipality Sabastia et. al. v. State of Israel [2006], available at http://www.court.gov.il/heb/home.htm.

[42] HCJ 390/79 Dweikat v. The Government of Israel [1979] IsrSc 34(1) 1.

[43] See Ronen Shamir, Landmark Cases and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice, 24(3) Law & Soc'y Rev. 781, 788-89 (1990) (discussing the ISC's rulings on the settlements); Michael Lynk, Down By Law: The High Court of Israel, International Law, and the Separation Wall, 35(1) J. Palestine Stud. 6 (2005) (discussing the ISC's rulings on the separation wall).   

[44] See Nimer Sultany, The Perfect Crime: the Supreme Court, the Occupied Territories, and al-Aqsa Intifada, 3 Adalah's Rev. 49, 53-4 (2002). 

[45] Orna Ben-Naftali, Aeyal Gross & Keren Michaeli, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 Berkeley J. Int'l L. 551 (2005).

[47] Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 19, 25 (2003).

[48] Leon Sheleff, Gvol ha-Activism Who ha-Kav ha-Yaruk: Bishuli o-Bishveli ha-Psikah shel Beit ha-Mishpat ha-Gavoah la-Tsedek ba Shtahim [The Green Line is the Border of Judicial Activism: Queries about High Court of Justice Judgments in the Territories], 17 Tel Aviv U. L. Rev. 757 (1993).

[49] See Baruch Kimmerling, Boundaries and Frontiers of the Israeli Control System: Analytical Conclusions, in The Israeli State and Society: Boundaries and Frontiers (Baruch Kimmerling ed., 1989).

[50] Hassan Jabareen, Ignoring the ‘Other', Haaretz (Books Supp.), June 17, 2005.

[51] Id. See also Yehuda Ben Meir, Ha-Shakhpats shel ha-Mdinah [The Bulletproof of the State], Haaretz, Dec. 20, 200.

[52] Diana Bechur-Nir, Sharon: Psikat Bagats Ta'zor Bihag [Sharon: High Court's Ruling Will Help at The Hague], Ynet, July 4, 2004. 

[53] Noted in Moshe Gorali, Ha-Mishpat Hacham ‘al Halashim. Shalosh Dogma'ot [The Law is Smart on The Weak. Three Examples], Haaretz, June 1, 2003.     

[54] Barak's statement to this effect is reported in a conversation with former U.S. President Jimmy Carter. See Levitsky, supra note 33, at 290. See also Jimmy Carter, Palestine: Peace Not Apartheid 126 (2006).     

[56] One of Barak's former clerks stated that "deep inside" Barak perceives the Palestinians as "bitter and dangerous enemies." Quoted in Levitsky, supra note 33, at 290-91. 

[57] See Barak, supra note 47, at 148.

[58] See Extrajudicial Executions Policy Case, supra note 36, ¶63.

[59] Cf. Achille Mbembe, Necropolitics, 15(1) Public Culture 11 (2003) (discussing Mbembe's theory of the power of death with reference to the OPT).

[60] Id. at 27.

[61] Id. at 39.

[62] Tom Segev, What Aharon Barak Leaves Behind, Haaretz, Sept. 14, 2006.

I. Introduction

During the escalation of the conflict between Israel and Hezbollah, the U.N. Security Council ("SC") intervened with Resolution 1701 on August 11, 2006.^_[1] The ambiguity of this resolution does not appear to provide any help in the debate among political scientists and legal scholars on the highly complex Israeli-Lebanese crisis in understanding the positions of the two parties to the dispute on the basis of norms of international law.

One particularly controversial matter is the legality of Israel's use of armed force in Lebanon. In this regard, Resolution 1701 expresses generic "concern at the continuing escalation of hostilities in Lebanon and in Israel since Hizbollah's attack on Israel on 12 July 2006;"^_[2]c]alls for a full cessation of hostilities based upon, in particular, the immediate cessation by Hizbollah of all attacks and the immediate cessation by Israel of all offensive military operations";^_[3] "[c]alls for Israel and Lebanon to support a permanent ceasefire and a long-term solution"^_[4] based, in part, on "the disarmament of all armed groups in Lebanon"^_[5] so that, pursuant to the Lebanese cabinet decision of July 27, 2006, "there will be no weapons or authority in Lebanon other than that of the Lebanese State;"^_[6] and decides"to authorize an increase in the force strength of UNIFIL [the United Nations Interim Force in Lebanon]," which shall assist the government of Lebanon.^_[7] "[

This resolution gives rise to certain questions, such as how to define "Hizbollah's attack" of July 12. It is not clear if it is considered a terrorist attack or whether it is attributable to the Lebanese Government, or to Syria or Iran. Also, the force exercised by Israel is generically referred to in terms of "offensive military operations,"^_[8] but there is no reference to "aggression" or "occupation." It appears to me obvious from the entire tenor of Resolution 1701 and the reference to "Hizbollah's attack on Israel" that this resolution is intended to exclude the hypothesis of a preventive Israeli self-defense against terrorists in Lebanon. The resolution seems to consider the Israeli military action as a response to Hezbollah's "attack." However, it cannot be qualified as an "armed attack," according to Article 51 of the U.N. Charter; therefore, the Israeli "military operations" are qualified as "offensive" since they cannot be regarded as an implementation of the right to self-defense, lacking the necessary requirement of the armed attack.

In addition, the resolution makes no reference to any chapter of the U.N. Charter, giving rise to debate among legal scholars about where it should be placed in the U.N. framework.^_[9]

The present study is directed at addressing an important issue-the right of self-defense in the case of armed attack by a non-state armed group.^_[10] The analysis provides a conceptual framework for describing and critically assessing the contribution of Resolution 1701 to this crucial issue in normative and practical terms. It concludes that Resolution 1701 has actually made a step in the direction of allowing states attacked by non-state actors to retaliate. Some reflections on the position of the resolution in the Charter system are also contained below.

But, first of all, mention should be made of an issue in the analysis of the legality of Israel's use of armed force in Lebanon. This obviously includes the concept of proportionality in the context of legitimate self-defense, which raises questions of methodology as well as others of interpretation and thus requires priority.

Scholars, diplomats, and political leaders have concentrated their attention on the "proportionality" of the Israeli intervention in Lebanon: they have put forward arguments both for and against, with some commentators considering the Israeli reaction to be disproportionate and therefore illegitimate. The discussion about whether or not Israel's actions are proportionate to the actions of Hezbollah has been based on the traditional view, recently expressed by Professor Frederic Kirgis, according to which "the intensity of force used in self-defence must be about the same as the intensity defended against."^_[11]

In connection with this doctrinal opinion, I should like to propose an alternative reading of the relevant pronouncements of the International Court of Justice ("ICJ").  I submit that that the principle of the proportionality of legitimate defense could be taken to mean that the degree of force used in self-defense must be commensurate with the end to be achieved-the restoration of the rights violated as the result of an armed attack. This means that force must be "strictly necessary" in any situation and "directed" at the removal of the violation and the restoration of the violated rights.

For example, in the case of Congo v. Uganda, the ICJ considered that "the taking of airports and towns many hundred kilometers from Uganda's border would not seem proportionate to the series of transborder attacks it [Uganda] claimed had given rise to the right of self-defence, nor to be necessary to that end."^_[12] According to the Court, that the armed intervention of Uganda took place a great distance from where the violation occurred meant that the use of force for legitimate defense was not proportionate, since it was not suited to stopping the attacks along the border and therefore to achieving the object of restoring the rights of the state asserting a violation of its borders. The same reasoning underlies the advisory opinion on the Threat of Use of Nuclear Weapons, in which the Court even contemplated the use of nuclear armaments "in an extreme circumstance of self-defence, in which the very survival of a State would be at stake."^_[13] 

The proportionality principle also requires the action taken in self-defense to be halted when the "end" has been achieved. In Military and Paramilitary Activities in and Against Nicaragua ("Nicaragua v. United States"), the ICJ considered "not to have been proportionate" the United States' activities relating to the mining of Nicaraguan ports and attacks on ports and installations,^_[14] noting that "the reaction of United States in the context of what it regarded as self-defence (against Nicaraguan-supported rebels in El Salvador) was continued longafter the period in which any presumed armed conflict by Nicaragua could reasonably be contemplated."^_[15]

      An analysis of the proportionality of the Israeli military action raises a methodological issue. Clearly, implicit in any discussion of proportionality is compliance with Article 51 of the U.N. Charter since, if it were to be found that the preconditions for the exercise of the right to self-defense were lacking, it would make no sense to discuss whether Israel's military operations were proportionate. This was the pronouncement of the ICJ in the Congo v. Uganda case.^_[16] From a methodological point of view therefore, there is a need to establish as a matter of priority whether Israel made proper use of force in self-defense (since it is not obvious!), and, in the case of an affirmative response, to establish whether the Israeli military action was necessary and proportionate under international law.

III. Legal Basis for Israel's Right to Resort to Self-Defense

In general, the Security Council and the international community have discussed whether attacks by terrorist organizations and groups or irregular forces can be considered "armed attacks" or acts of aggression, which would allow for the exercise of the right to resort to armed force pursuant to Article 51. In connection with international terrorism, an affirmative interpretation, supported above all by Israel and the United States (and recently also by Uganda and Congo^_[19])has generally been rejected in the past. In the late 1980s, the U.N. denied that Article 51 could justify the use of force or the right of self-defense as a response to terrorist attacks such as the bombing of Tripoli and Bengasi by the United States (1986) and the bombing of the Palestine Liberation Organization offices in Tunisia by Israel (1985 and 1988).^_[20]

In contrast, after the attack on the United States by Al-Qaeda on September 11, 2001, the Security Council, which was immediately convened, recognized the United States' right of legitimate self-defense and, as a result, deemed legitimate the armed intervention by the United States against Afghanistan.^_[21] Still, in the advisory opinion Construction of a Wall,^_[22] the ICJ rejected Israeli claims that the construction of a wall in Palestinian territory was legitimate. Israel, referencing the United States' armed intervention in Afghanistan, had claimed that the legitimacy for constructing the wall was founded on its right to self-defense.^_[23] The Court underlined the difference between the two situations and stated that "Article 51 of the Charter . . . recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State."^_[24]

This line of reasoning was once again adopted in Congo v. Uganda (and, recently, in Bosnia and Herzegovina v. Serbia and Montenegro),^_[26] in which the Court found "that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the Democratic Republic of the Congo (DRC) were not present." Despite arguments by Uganda to the contrary, the Court found that "there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC . . . ."^_[27]

On the basis of these considerations, what might be the legal basis for Israel's right to resort to armed force in the recent conflict in Lebanon and northern Israel? It only remains to ascertain whether Hezbollah's "armed attacks" can be attributed to a state, be it Lebanon, Syria, or Iran, and whether these acts are of "such gravity" as to amount to large-scale armed attacks.

It appears to be difficult to claim, on the basis of the normative acts available, that the Hezbollah attacks on Israel can be imputed to a state. The acts of the U.N. organs (Security Council Resolution 1701 and the Secretary-General's Report on its implementation^_[28]) do not deal specifically with this point-neither the overall tone nor the language enables us to ascertain this element with a degree of certainty. Resolution 1701 does not provide an assessment of responsibility on the basis of the existence of "effective control" over the Hezbollah attacks by a state (under Article 39 of the Charter), nor does it make reference to support for Hezbollah by third-party states such as Syria and Iran. With regard to Lebanon, the context of the resolution leads us to rule out any involvement, either direct or indirect, on the part of the Lebanese government. Certain paragraphs memorialize the intention of the Lebanese government to disarm and render inoperative the Hezbollah fighters.^_[29] This leads us to rule out the possibility that the Israeli military operations can be founded on Article 51 of the Charter, even if the long list of deplorable actions on the part of the Hezbollah-such as launching missiles against Haifa-could be regarded as "cumulative in character"^_[30] and as having the characteristics of gravity pertaining to acts of war.

This is the case because, even if responsibility is assigned to the Lebanese government for having failed to take measures to prevent the action or to bring to justice those behind the terrorist actions, this would not grant Israel the right to resort to armed force (but rather to use other forms of international sanctions); such actions still remain non-attributable to Lebanon. In this case, the armed non-state activities cannot be attributed to a state according to current doctrinal opinion and case law rulings.^_[31]

If one reaches the conclusion that Hezbollah's "attack" is not imputable to a state, then the Israeli reaction cannot be founded on Article 51 of the Charter in conformity with contemporary international law. This seems to be confirmed also by the Security Council, which determined Israel's military operations to be "offensive," thus stating that they cannot be founded on the right of legitimate self-defense.

C. The Need for New Standards Less Rigid in Their Application

"Effective control" as the basis for attribution to a state of non-state armed acts is too rigid a criterion. For a state to "effectively control" a non-state actor, Nicaragua v. United States requires "financing, organizing, supplying and equipping . . . the selection of its military or paramilitary targets and the planning of the whole of its operation."^_[32] A more recent decision requires "overall control," involving also participation in the planning and supervision of military operations.^_[33] These high standards stand in contrast to the 1974 Resolution of the General Assembly, which required merely "substantial involvement."^_[34] Moreover, "effective control" is not easy to ascertain in concrete cases, as there is a need for "clear evidence" of a State having exercised such a degree of control "in all fields" so as to justify treating a non-state actor as acting on its behalf.^_[35]

This point is by no means easy to resolve because it is risky to argue for equating non-state actors to states, thereby providing an automatic extension of the right to legitimate defense under Article 51 of the Charter to armed attacks from non-state organizations. However, the emergency remains, and international law must find a way to deal with the fact that international society has grown to include new actors who possess and deploy military equipment comparable to that of sovereign states. Because of this danger, there is a need for new rules of attribution and standards less rigid in their application, together with objective institutional mechanisms, to allow for self-defense in the face of a non-state armed attack. This should act as a deterrent for terrorist groups and the states sponsoring them. It is for this reason that certain legal scholars have proposed adopting, in addition to "effective control," the standard of "due diligence" as a basis for attribution.^_[36]

Who should step in at an international level to fill this normative void? Certainly the U.N. bodies that, within the changing institutional framework of the international community that has evolved to deal with new international issues, have set in motion procedures to provide international norms that go beyond the classical procedures of customary law.^_[37] That the U.N. bodies should fill this gap aligns with Thomas Franck's forceful argument for "the capacity of law to adapt to new circumstances."^_[38]

In the 1970s, the U.N. General Assembly made an important contribution to the definition of aggression; it did so at a time when international terrorism had not taken on the global character that it has today. The General Assembly does not have binding normative powers, but, by means of its Declarations of Principle, it carries out the function of encouraging "the progressive development of international law" (Article 13, 1 (a) of the U.N. Charter), and it is the primary forum for the adoption of principles of international law of an instantaneous character.^_[39] However, a significant limit on the effective ability of the General Assembly to provide for a right of self-defense against non-state actors arose from a disagreement within the U.N. on the definition of "terrorism"^_[40] and how to distinguish between terrorism, which it condemned, and violence on the part of national liberation movements, which it considered possibly legitimate.^_[41]

Even the ICJ has not specifically dealt with this matter. In the above-mentioned case of Congo v. Uganda, the Court did not consider it appropriate "to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces."^_[42] Even in the Advisory opinion Construction of a Wall, the Court failed to take advantage of the opportunity given to it by Israel's claim that the construction of a wall constituted an exercise of the right of self-defense in the face of terrorist attacks.^_[43]

One of the functions of the Court is to interpret the norms of international law and, therefore, Article 51 of the Charter. But the Court takes a cautious approach toward intervening in a matter entrusted primarily to the Security Council by Article 24 of the Charter. Thus, it hesitates to extend the application of Article 51 to non-state actors, which would be possible according to the language of Article 51. Commentators have underlined that the letter of this Article does not expressly require that an armed attack triggering the right to self-defense must come to be attributable to a state.^_[44] In the words of Article 51 of the U.N. Charter, "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations."^_[45]

So, the body that has really dealt with this, easing the way for future advances of the other two bodies-the ICJ and the General Assembly-is the Security Council.

IV. A Mechanism for Attribution Established by Security Council Resolution 1701

Although the Security Council has not made an explicit effort to change the standard for a right to self-defense from "effective control," it has made a step in the right direction by making it easier to attribute terrorist attacks to states.

The Security Council made provision for a more extensive application of Article 51 after the terrorist attacks of September 11, 2001 in the United States, considering as legitimate the exercise of the right of self-defense in response to an armed attack by a non-state group involved in terrorist activities.^_[46] In that case, the Security Council did so by attributing the actions of the Taliban to Afghanistan. Following from this proposition, Resolution 1701 introduces what may be considered to be a "rule-based model of attribution" that aims to overcome the legal obstacle of "effective control." This is especially appropriate in the unclear Lebanese situation in which Hezbollah appears to have close links with the Lebanese government. Although it has not yet been proven, there is a strong suspicion that there were links and a secret agreement with the government of Lebanon that Hezbollah's members would not be disarmed and would be allowed to continue to import arms.^_[47]

The Security Council approaches the question of attribution only indirectly and at a practical level. The resolution aims to re-establish effective control by the Lebanese government over its territory, to enable it to be free and, at the same time, to make it responsible for its political actions. To this effect, it "[c]alls upon the Government of Lebanon to secure its borders and other entry points . . . and requests^_[48] to prevent the entry into Lebanon of arms or related material "without its consent".^_[49] The resolution clearly statesthat "no foreign forces [may be] in Lebanon without the consent of its government [and that] no sales or supply of arms and related material [should go] to Lebanon except as authorized by its government."^_[50]  The resolution's aims can be identified through the wording chosen: that of "assist" and "consent." On the basis of these provisions, the Lebanese government is permitted to make the voluntary choice as to whether to support the terrorist actions of Hezbollah or to oppose them. It alone has the power to decide whether to disarm the Hezbollah fighters or to allow weapons in to equip them-it all depends on the political will of the government, and UNIFIL cannot interfere with it.  UNIFIL . . . to assist the Government of Lebanon"

In this way, the entire scenario can be seen as providing a sort of mechanism for attribution, a context within which any further armed activity on the part of terrorist groups based in Lebanon would be deemed the "deliberate official policy"^_[51] of the government of Lebanon. If the Lebanese government was forced to take responsibility for large-scale attacks, it would leave open the way for legitimate self-defense on the part of Israel under the terms of Article 51. These attacks will be imputable to the authorities of Lebanon, since the "consent" provides a clear and unequivocal act of "acknowledgment and adoption" of the conduct in question.

The "acknowledgement and adoption" standard of attribution, already adopted by the Security Council in Resolution 138 in the case of Eichmann's capture^_[52] and formalized by the International Law Commission ("ILC") in Article 11 of the Report on State Responsibility of 2001,^_[53] originated in the Diplomatic and Consular Staff case, in which the ICJ ruled that "the Iranian State . . . itself was internationally responsible"^_[54] for attacks by Iranian militants on the U.S. embassy in Teheran. These attacks were the outcome of a change in policy adopted by the Iranian authorities and of "the approval" given to the conduct of the militias that transformed the initial legal situation. The Court found that there was a substantive difference in terms of the legal consequences between the initial negligence of the Iranian State for having failed "to take appropriate steps" in order to prevent the attacks on the embassy, and the subsequent behavior, during which the Iranian authorities were "aware of their obligation," and, "due to more than mere negligence or lack of appropriate means," "failed to use the means which were at their disposal to comply with their obligations."^_[55] In essence, the Court made a distinction between "mere negligence" and what may be called "awareness/conscious negligence"-only in the latter case is the conduct in question to be attributed to the state.

The Diplomatic and Consular Staff standard of attribution has a far wider significance in connection with the standard laid down in Article 11 of the ILC Report, which "provides for attribution to a State of conduct that was not or may not have been attributable to it at the time of commission, but which is subsequently acknowledged and adopted by the State as its own,"^_[56] i.e., "retroactive" attribution.

The resolution seems to lay the legal basis for Lebanon's responsibility for possible armed attacks on Israel by Hezbollah on the "conscious negligence" (i.e., awareness and failure on the part of a state to use the means that were at its disposal to prevent terrorist activities) of the Lebanese government.

The Security Council consolidates a rule of attribution, around which there is much uncertainty, expressing a preference for the ICJ's interpretation. Moreover the Security Council has applied such a norm in an original manner, as a law-maker, setting it as the basis for a mechanism of shared governance and contributing to the gradual establishment of an integrated enforcement system, on which I have largely focused (and have systematically reconstructed) in previous writings.^_[57] Already, the substantial international community (i.e. the inter-state community) has developed mechanisms of integration with the organized international community (i.e., the international organizations and the global NGO community) and, above all, the United Nations.^_[58]

From an operational point of view, the resolution aims to provide a response to the problems posed by weak and/or acquiescent governments that offer sanctuary to terrorist networks preparing attacks on other states. It puts in place a mechanism to dissuade the Government of Lebanon from supporting Hezbollah fighters by setting up a U.N. support force to restore territorial control and to assist the Lebanese army while allowing the Lebanese government to decide whether to ensure respect for the arms embargo and disarm the terrorist groups or to allow weapons to enter and permit terrorist groups to equip themselves.

In normative terms, what I am arguing for is also a sort of mechanism for the attribution of the acts of armed groups operating on its territory to the Lebanese government. This attribution is based upon "acknowledgement and adoption" (with the meaning of "awareness/conscious negligence")-a less rigid standard than the criterion of "effective control," which itself was a more cautious approach than the earlier-espoused standard of "due diligence/mere negligence."

The resolution institutes a mechanism of law-enforcement that follows in the wake of the ongoing process of change in the system of international guarantee toward new forms. This is a change determined by the need to make up for the inability of classical forms of guarantee and the U.N. system itself to protect collectively new fundamental values of the global community (e.g., peace, human rights, self-determination, sustainable development, the environment, international commons, etc). The shortcomings of the Charter are well-known. It is not only those that are procedural, (blocking of the system due to vetoes, the lack of decision-making power of the General Assembly, etc); but also that the UN system of collective security foreseen by Chapter VII is solely focussed on safeguarding the peace in the event of "threats to peace, violation of the peace and acts of aggression". In any case, even for maintaining the peace, the United Nations does not possess the necessary tools, since the "special agreements" foreseen by the Charter (for instance, in Articles 43-47) for the creation of a permanent standing U.N. army have never been stipulated.

It is therefore particularly important to focus attention on mechanisms of joint governance and processes of multilateral authoritative decision-making between states and international organizations acting jointly. The United Nations participates in a position of superiority, carrying out the function of control and legitimization of multilateral activity, which is a new role for it compared to its strictly institutional one.

I believe the mechanism put in place by Resolution 1701 should be placed outside the normative system of the U.N. Charter, with regard to both Chapters VI and VII, as well as articles 42 and 51. It serves as the model for a more effective, integrated system for a new era in the enforcement of international law under the authority of the United Nations. It is a response to the problems arising from the conflict in Lebanon, which could also be effective in analogous unlawful territorial situations if the mechanism, currently in its embryonic form, is perfected and formalized.

This is only an initial step, and there remains a need for normative and operational interventions with a courageous reorganization of international law enforcement, through the formalization and institutionalization of integrated mechanisms.

[1] S.C. Res. 1701, U.N. Doc S/RES/1701 (Aug. 11, 2006).

[3] Id., ¶ 1.

[4] Id., ¶ 8.

[9] See Anthony D'Amato, The UN Mideast Ceasefire Resolution Paragraph-by-Paragraph, Jurist's Forum (Aug. 13, 2006), available at http://jurist.law.pitt.edu/forumy/2006/08/un-mideast-ceasefire-resolution.php.

[10] William V. O'Brien, Reprisals, Deterrence, and Self-Defense in Counterterror Operations, 30 Va. J. Int'l L. 421 (1990); Yoram Dinstein, War, Aggression and Self-Defence (4th ed. 2005).

[11] See Frederic Kirgis, Some Proportionality Issues Raised by Israel's Use of Armed Force in Lebanon, ASIL Insight (Aug. 17, 2006), available at http://www.asil.org/insights/2006/08/insights060817.html.

[12] Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116, ¶ 147 (Dec. 19).

[13] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1995 I.C.J. 95, ¶ 97 (July 8).

[14] Military and Paramilitary Activities in and Against Nicaragua (Nic. v. U.S.), 1986ICJ 14, 122, 237 (June 27).

[16] See supra note 12, ¶ 147.

[17] See Nic. v. U.S., supra note 14, at 102-03, ¶ 193.

[18] See, e.g., Sean D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N. Charter, 43 Harv. Int'l L.J. 41 (2002).

[19] See Dem. Rep. Congo v. Uganda, supra note 12, ¶¶ 147, 253, 254, 278, 286.

[20] See, e.g., S.C. Res. 425, U.N. Doc. S/RES/425 (Mar. 19, 1978); S.C. Res. 573, U.N. Doc. S/RES/573 (Oct. 4, 1985); S.C. Res. 611, U.N. Doc. S/RES/611 (Apr. 25, 1988); G.A. Res. 41/38, U.N. Doc. A/RES/41/38 (Nov. 20, 1986). 

[21] See, e.g., Steven R. Ratner, Jus ad Bellum and Jus in Bello After September 11, 96 Am. J. Int'l L. 905 (2002).

[22] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131 (July 9, 2004).

[25] Nic. v. U.S., supra note 14, at 65, ¶ 115.

[26] Dem. Rep. Congo v. Uganda, supra note 12. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 91, ¶¶ 377-415 (Feb. 26, 2007).

[27] Dem. Rep. Congo v. Uganda, supra note 12, ¶ 146.

[28] The Secretary-General, Report of the Secretary-General on the Implementation of Security Council Resolution 1701, U.N. Doc. S/2006/730 (Sept. 12, 2006).

[29] S.C. Res. 1701, supra note 1, ¶¶ 3, 12.

[31] See, e.g., Jonathan Somer, Acts of Non-State Armed Groups and the Law Governing Armed Conflict, ASIL Insight (Aug. 24, 2006), available at http://www.asil.org/insights/2006/08/insights060824.html; United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, at 16-34, ¶¶ 27-68 (May 24). 

[33] Prosecutor v. Tadic,Case No. IT-94-1-A, ¶¶ 120, 122, 123, 131 (July 15, 1999).

[35] Nic. v. U.S., supra note 14, at 62, ¶ 109.

[36] Robert P. Barnidge Jr., States' Due Diligence Obligations with Regard to International Non-State Terrorist Organisations Post-11 September 2001: The Heavy Burden that States Must Bear, 16 Irish Stud. Int'l Aff. 103 (2005).

[37] See, e.g., Josè E. Alvarez, International Organizations as Law-Makers (2005).

[38] Thomas M. Franck, The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium, 100 Am. J. Int'l L. 88, 104-05 (2006).

[39] See, e.g., Bin Cheng, UN Resolutions on Outer Space: "Instant" International Customary Law?, 5 Indian J. Int'l L. 23 (1965).

[40] See generally M. Cherif Bassiouni, Legal Control of International Terrorism, 43 Harv. Int'l L. J. 83, 101 (2002).

[41] See, e.g., G.A. Res. 3314 (XXIX), supra note 34, at Art. 7.

[42] Congo v. Uganda, supra note 12, ¶ 147.

[44] See, e.g., Karl Zemanek, Self-Defence Against Terrorism, Reflexions on an Unprecedented Situation, in El Derecho Internacional en Los Albores del Siglo XXI: Homenaje al Professor Juan Manuel Castro-Rial Canosa 695, 702 (Fernando M. Mariño Menendez, ed. 2002).

[46] S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001); S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001) (reaffirmed in S.C. Res. 1440, U.N. Doc. S/RES/1440 (Oct. 24, 2002)); S.C. Res. 1450, U.N. Doc. S/RES/1450 (Dec. 13, 2002); S.C. Res. 1452, U.N. Doc. S/RES/1452 (Dec. 20, 2002); and S.C. Res. 1465, U.N. Doc. S/RES/1465 (Feb. 13, 2003).

[48] S.C. Res. 1701, supra note 1, ¶ 14. See also ¶¶6; 11(d), (e), (f); 12

[50] Id., ¶ 8.

[52] S.C. Res. 138, U.N. Doc. S/4349 (June 23, 1960).

[53] Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, art. 11, in Int'l Law Comm'n, Report of the International Law Commission on the Work of Its Fifty-third Session, U.N. Doc. A/56/10 (2001). 

[54] Diplomatic and Consular Staff, supra note 31, ¶ 74.

[56] Draft Articles on Responsibility of States, supra note 53, commentary to art. 11, at 119.

[57] Giuliana Ziccardi Capaldo, The Law of the Global Community: An Integrated System to Enforce "Public" International Law, 1 Global Community YILJ 71, 97 (2001).

[58] I first used this difference in Giuliana Ziccardi Capaldo, Terrorismo Internazionale E Garanzie Collettive (1990), at 127-30.

Some degree of judicial review would in fact remain. Section 7 itself expressly preserves language in the Detainee Treatment Act of 2005 ("DTA"), pursuant to which the D.C. Circuit Court of Appeals may review certain issues associated with the determinations of Combatant Status Review Tribunals ("CSRTs") and military commissions.^_[6] From the point of view of the handful of detainees who ultimately may be prosecuted for a war crime before a military commission, the nature of the D.C. Circuit's appellate authority over such criminal trials naturally would be a pressing concern. For present purposes, however, my concern is with the court's appellate authority over CSRTs-a matter of significance to all detainees.

The function of a CSRT is to determine whether a given person is in fact within the category of individuals who may be subjected to military detention.^_[7] This inquiry might produce accurate determinations, but it also might produce false positives or false negatives. The critical question here, as with any fact-finding process, is whether the procedural safeguards strike an appropriate balance between the polar risks of over- and under-inclusiveness-a question that has both legal and policy components. One of the core criticisms of post-September 11th detention policies boils down to the claim that the CSRT process permits an undue number of false positives.^_[8] Indeed, claims of factual inaccuracy are the very core of most detainee habeas petitions. Accordingly, the continuing existence of judicial review in connection with CSRT determinations could be highly significant, depending on the nature of that review.

According to the DTA, the D.C. Circuit is permitted to consider two sets of issues when reviewing a CSRT determination. First, the D.C. Circuit can review to determine whether the CSRT in a particular case was conducted in accordance with the "standards and procedures" established by the Pentagon for such proceedings.^_[9] Second, the D.C. Circuit can review to determine "whether the use of such standards and procedures . . . is consistent with the Constitution and laws of the United States."^_[10] 

What precisely do these provisions authorize the D.C. Circuit to do? Before turning to that question, I note that it is not yet clear which court will answer it first. If the Supreme Court reaches the merits in Boumediene and determines that Guantánamo detainees may invoke the Suspension Clause, it may well address this question en route to determining whether DTA review constitutes a sufficient substitute for habeas review. Otherwise, the question may be left to the D.C. Circuit to determine in the first instance, most likely in connection with Parhat v. Gates^_[11] and Bismullah v. Gates,^_[12] the first two DTA appeals from CSRT determinations to reach that court.

May noncitizen detainees held at Guantánamo invoke constitutional protections such as procedural due process? The D.C. Circuit answered that question negatively in Boumediene itself.^_[13] If the Supreme Court affirms on that point in the course of sustaining the MCA's jurisdictional provisions-and it does seem probable that a ruling that sustains the MCA's jurisdictional provisions would so affirm-it would seem to follow that this aspect of the D.C. Circuit's DTA authority would lack any practical significance.

Would the DTA permit the detainees to contend in the alternative that the CSRT process violates the Geneva Conventions or customary international law standards? As to the treaty argument, several obstacles arise. First, MCA section 5 purports to preclude any party in an action against the United States from invoking the Geneva Conventions "as a source of rights."^_[14] Whether a reviewing court would find this provision binding is not certain, however. If the court believed that the Geneva Conventions were not self-executing even prior to the MCA's enactment, then section 5 merely restates the status quo and the D.C. Circuit would not be permitted to consider Geneva-based claims. If a court were to conclude instead that the Geneva Conventions were self-executing, however, it would then have to proceed to consider whether Congress has the power to "unexecute" an otherwise self-executing treaty post-ratification. It would have to do so, moreover, without relying on the last-in-time rule pursuant to which a subsequent statute may supersede a treaty obligation for purposes of domestic law; the MCA does not seek to break the Geneva Convention obligations of the United States, but rather to leave those obligations in place while precluding litigation based on them.

Even if detainees navigate that minefield, two major obstacles remain between them and the consideration of treaty-based claims upon DTA review-obstacles that might apply equally to claims grounded in customary international law. First, the detainees would have to persuade the court that the DTA's reference to "laws of the United States" was meant to include either type of international law claim. Second, and perhaps most problematically, the detainees would have to demonstrate that either the Geneva Conventions or customary international law contain substantive prohibitions that would demand greater procedural safeguards than those afforded by CSRTs.

On this latter point, the Geneva Conventions would not prove terribly helpful to the detainees. Common Article 3, for example, simply does not speak to this topic. What about Article 5 of the Geneva Convention (Third) Relative to the Treatment of Prisoners of War, which arguably might apply at least to Taliban detainees?^_[15] Article 5 requires that "a competent tribunal" be convened to resolve "any doubt ... as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [identifying the discrete categories of persons who are entitled to the benefits of prisoner-of-war status]."^_[16] Article 5 does not specify the procedural safeguards required of such tribunals, however. And in any event, Article 5 tribunals by their own terms are required only to resolve disputes regarding prisoner-of-war status-not disputes regarding the distinct question whether the detainee in fact had committed a belligerent act in the first instance.

That said, it does appear that in past conflicts such as the First Gulf War, the U.S. military used field tribunals convened in the name of Article 5 not only to resolve prisoner-of-war disputes, but also to screen out inappropriately detained civilians. There is no indication, however, that these or any other Article 5-style screening systems employed procedural safeguards more robust than those employed by CSRTs.^_[17]

At first blush, this authority would seem to afford no meaningful protection, as the objections frequently lodged against CSRTs-for example, permitting the fact-finder to consider classified evidence not made available to the detainee-focus on the shortcomings of the rules themselves rather than possible misapplications of them. There is one aspect of this authority, however, that at least potentially would have genuine significance.

The DTA states that in determining whether a given CSRT complied with the standing rules, the D.C. Circuit should specifically consider whether the "conclusion of the Tribunal [is] supported by a preponderance of the evidence."^_[18] Given that the inculpatory portions of the record on appeal from a CSRT determination in most instances will consist primarily, if not exclusively, of affidavits and other forms of "cold" evidence, rather than testimony given live during the CSRT, it may be that the D.C. Circuit will prove willing to engage in a relatively robust degree of review when revisiting the sufficiency of the evidence supporting a CSRT determination.

This discussion began by asking what happens if the Supreme Court denies certiorari or affirms in Boumediene. Before closing, it is worth exploring the consequences of another possibility:^_[19] What happens if the Court instead reverses^_[20] and determines that noncitizens held at Guantánamo may invoke constitutional protections ranging from habeas corpus to procedural due process?^_[21]

In that event, federal courts might consider a wide array of issues on habeas review. Among other things, courts might examine (1) whether the definition of "enemy combatant" employed in the CSRT process exceeds the scope of the military's detention authority as measured either by the President's inherent constitutional authority or the September 18, 2001 Authorization for Use of Military Force; (2) whether CSRT procedures are consistent with due process (and perhaps other) considerations; and (3) whether (and to what extent) a habeas court should engage in a de novo fact-finding process as opposed to simply policing CSRT procedures.

In resolving these issues-particularly those impacting the extent to which federal courts will regulate and supervise the CSRT fact-finding process-courts would do well to be mindful of the potential consequences of their choices. That should go without saying, of course. But it is worth repeating nonetheless. Consider the following:

The original decision to send detainees to Guantánamo for military detention is often described as an effort to put detainees into a legal "black hole," a characterization that implies a change from the status quo in the direction of fewer rights. But that implication is misleading; noncitizen detainees held at Bagram Air Base or other overseas detention facilities prior to arriving at Guantánamo were at least as poorly situated ex ante, from a legal perspective, and persons held in such overseas locations today remain so situated. Meanwhile, the circumstances for Guantánamo detainees changed as a result of Rasul, with the prospect of considerably greater change should the Supreme Court reverse in Boumediene. This state of affairs did have a practical consequence in that the influx of detainees to Guantánamo slowed considerably after Rasul despite ongoing conflict in Afghanistan and the continuing effort to incapacitate persons associated with al Qaeda elsewhere in the world.^_[22]

Bearing this in mind, some difficult questions arise. Might the extension of a robust form of judicial review to Guantánamo detainees cause the government to rely more than it otherwise would on detention facilities in Afghanistan and elsewhere, which are not only less secure and convenient, but also less transparent and less likely to be subjected successfully to litigation of any kind? And if the rules that might be applicable to Guantánamo are generated in such a way as to apply equally to all U.S. detention operations irrespective of geography or context-a daunting prospect when one considers the state of affairs in Iraq and the presence of some 17,000 detainees currently in custody at Camps Bucca and Cropper in Iraq^_[23]-might this run the twin risks of unduly disrupting military operations in the context of a conventional zone of armed conflict and of spurring greater reliance on practices such as extraordinary rendition in which detention responsibility is effectively outsourced to a third party?

I do not mean to suggest that these considerations should prompt courts to conclude that Guantánamo detainees lack constitutional or other legal rights. I do mean to suggest, however, that in fleshing out the law of military detention in the aftermath of a decision or denial certiorari in Boumediene, courts must remain mindful of all the contexts in which those rules might be brought to bear. This is particularly important because of the non-traditional way in which the United States-al Qaeda conflict presents the detention issue. The United States aims to incapacitate associates of a clandestine transnational network with loose organizational ties, rather than persons serving overtly in the armed forces of a state. The United States at times encounters these individuals in traditional battlefield environments, but also finds them in civilian settings. As a result, the risk of false positives in determining combatant status is indeed higher than would be the case in a conventional military conflict, where the mere fact of membership in the enemy force would not often present a difficult question. Recognizing this distinction helps to explain the tendency to pull the law associated with military detention away from the traditional model-entailing substantial deference to the military and little role for the judiciary-toward more familiar, rights-oriented terrain in which individual conduct is the focus of the inquiry, as with the model provided by the criminal justice system. Indeed, some adjustments to the traditional military detention model are warranted here because of these differences. But we must take care that in making such changes, we do not impose restraints on the detention process that would be unwarranted and undesirable if generalized to more traditional armed conflict contexts.

III.      Conclusion

Some of the open questions described above may well be resolved by the Supreme Court in its next foray into the thickets of detainee law, but no doubt many will be left to be resolved on remand. We should expect, then, still another wave of litigation in the aftermath of such a ruling. The slowly grinding process of developing and stabilizing our detainee laws and policies unfortunately is not yet near its conclusion.

[1] John B. Bellinger, Remarks on the Military Commissions Act, 48 Harv. Int'l L.J. Online 1 (2007), http://www.harvardilj.org/online/91.

[2] Gerald L. Neuman, The Military Commissions Act and the Detainee Debacle: A Response, 48 Harv. Int'l L.J. Online 33 (2007), http://www.harvardilj.org/online/105.

[3] Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).

[4] There is much talk of legislation on this topic, of course. But the prospect of veto-proof majorities in both the House and Senate seems quite unlikely at the time of this writing. I proceed on the assumption that, for the near term, developments in this arena will emerge from the courts rather than from Congress.

[5] It is entirely possible that the Court will affirm Boumediene yet reach a different result with respect to Ali Saleh Kahlah al-Marri, a Qatari citizen who was present in the United States at the time of his arrest and who is held in military custody within the United States. Al-Marri's habeas petition is pending before the Fourth Circuit Court of Appeals at the time of this writing.

[6] Military Commissions Act of 2006, Pub. L. No. 109-366, sec. 7(a), 120 Stat. 2600, 2635-36 (referring to sec. 1005(e)(2) and (3) of the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 2740 (to be codified in 10 U.S.C. § 801 note)).

[7] Note that the Combatant Status Review Tribunal ("CSRT") does not also consider whether a given detainee should receive prisoner-of-war status, protected-person status, or any other status under the Geneva Conventions. For an overview of the CSRT process, see Memorandum for Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Under Secretary of Defense for Policy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba (July 14, 2006), available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf.

[8] See, e.g., Mark Denbeaux & Joshua Denbeaux, Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data, available at http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf.

[9] Detainee Treatment Act of 2005, sec. 1005(e)(2)(C)(i) (to be codified at 28 U.S.C. § 2241). For these standards and procedures, see supra note 7.

[10] Detainee Treatment Act of 2005, sec. 1005(e)(2)(C)(ii) (to be codified at 28 U.S.C. § 2241). Cf. Boumediene, 476 F.3d at 988-993 (holding that noncitizens held at Guantanamo cannot claim constitutional protections).

[15] President Bush at least initially had determined that the United States and the Taliban were engaged in an international armed conflict for purposes of Common Article 2. See Memorandum for the Vice President, et al. (Feb. 7, 2002), available atwww.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf.  The Supreme Court's recent decision in Hamdan is not inconsistent. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795-96 (2006) (holding that Common Article 3 protections applied to al Qaeda-related detainee).

[16] Geneva Convention Relative to the Treatment of Prisoners of War art. 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

[17] In this regard, it is worth noting that the International Committee of the Red Cross's recent attempt at a restatement of the customary international law of war contains no reference to any procedural safeguards to be employed in ascertaining whether a person did in fact engage in a belligerent act. See Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law (2005).

[18] Detainee Treatment Act of 2005, sec. 1005(e)(2)(C)(i). Note, however, that the DTA also permits "a rebuttable presumption in favor of the Government's evidence." Id. Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 533-34 (2004) (approving the rebuttable presumption in government's favor in the habeas corpus context for citizen detainees captured during combat in Afghanistan, subject to "fair opportunity for rebuttal").

[19] There are other possibilities beyond those that I discuss here, including the possibility that the court will invoke abstention en route to some intermediate path.

[20] As Professor Neuman observes in his essay, see supra note 2, at 34, Justice Kennedy wrote in Rasul v. Bush that "Guantanamo Bay is in every practical respect a United States territory." 542 U.S. 466, 487 (2004) (Kennedy, J., concurring in the judgment). The majority opinion by Justice Stevens in Rasul implied as much by rejecting the relevance of the "presumption against extraterritoriality" in that case. Id. at 480-81. It does not follow that these Justices necessarily would extend some or all constitutional protections to persons detained at Guantanamo, but the prospect seems real enough. See also id. at 483 n.15 (stating that "petitioners' allegations . . . unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States'").

[21] In theory, the court might find that the detainees have habeas rights, but not due process rights. See Boumediene, 476 F.3d at 1011 (Rogers, J., dissenting). This seems rather unlikely, but in any event would give rise to concerns similar to those discussed in the text below.

[22] Only two sets of detainees have been transferred to Guantanamo in recent years: the fourteen "high-value" detainees including Khalid Sheikh Mohammed and Ramzi bin al-Shibh, see http://www.defenselink.mil/releases/release.aspx?releaseid=9909, and an additional detainee named Abdul Malik linked to terrorist plots in Kenya whose arrival at Guantanamo was announced in late March 2007, see http://www.defenselink.mil/releases/release.aspx?releaseid=10662.  

[23] See Walter Pincus, U.S. Expects Iraq Prison Growth, Wash. Post, Mar. 14, 2007, at A10.

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by: E.L. Gaston

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In his remarks, Mr. Bellinger frequently mentions that the law in this area is complex; he observes, for example, that prominent scholars do not agree on whether the prisoners should be subjected to criminal process or treated as prisoners of war ("POWs") under the Geneva Conventions.^_[3] But it is odd to conclude from this, as Mr. Bellinger seems to, that the law should be ignored or selectively applied. Echoing now-familiar Administration arguments, Mr. Bellinger invokes legal authority without acknowledging the corresponding limits.^_[4][5] yet the prisoners there "don't fit under the traditional laws of war" because Al Qaeda is not a nation and lacks a conventional army.^_[6] In truth, the law of war does not recognize such loopholes. Under Article 5 of the Geneva Convention (Third) Relative to the Treatment of Prisoners of War ("Geneva III"), the prisoners are presumed to be POWs, and are entitled to have their status determined, on an individual basis, by a "competent tribunal."^_[7] But even if they are determined not to be POWs protected by Geneva III, the prisoners must be afforded the protections of the Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Time of War ("Geneva IV"), including freedom from "physical or moral coercion . . . exercised . . . to obtain information from them or third parties."^_[8] In any event, all people detained during an armed conflict are protected by the fundamental guarantees of Common Article 3, a provision found in all four Geneva Conventions that prohibits, among other things, "cruel treatment and torture," "outrages upon personal dignity," and "humiliating and degrading treatment."^[9] As the ICRC's authoritative commentary on the Conventions puts it, "nobody in enemy hands can fall outside the law."^_[10] He explains that the United States was authorized to detain people at Guantánamo because "[w]e are in a legal state of armed conflict with Al Qaeda,"

In explaining why the prisoners cannot be tried in civilian criminal courts, Mr. Bellinger repeats the canard that most were picked up by U.S. soldiers "on the battlefield in the middle of a hot war in Afghanistan."^_[11] Not so. According to a report analyzing the government's own documents, only five percent of the prisoners at Guantánamo were captured by U.S. forces.^_[12] Most were handed over by the Northern Alliance, tribal warlords, or Pakistani authorities^_[13] amid obscure inter-tribal conflicts with shifting allegiances and offers of $5,000 and $20,000 per-head bounties by the United States.^_[14] Many were captured far from any battlefield. One of my clients at Guantánamo, Jamal Mar'i, was seized from his apartment in Karachi, Pakistan in the middle of the night. He joked to his Combatant Status Review Tribunal ("CSRT") that he was a "sleeping combatant." Another client, Abdulsalam al-Hela, was taken from his hotel in Cairo, Egypt by unknown men, held in various secret CIA prisons, and ultimately transferred to Guantánamo. Fifty-five percent of prisoners in Guantánamo are not even alleged to have engaged in a hostile act against the United States or coalition forces,^_[15] and "there are only a very few individuals who are actively engaged in any activities for al Qaeda and for the Taliban."^_[16] Indeed, the Administration's definition of "enemy combatant" is so absurdly broad that it would encompass, the government admits, a "little old lady in Switzerland" who sends money to a charity that, unbeknownst to her, turns out to be linked to Al Qaeda.^_[17]  

In crafting its detainee policy, the Administration did not seek merely to adjust for changed circumstances; it sought to avoid all legal accountability. The government revived and then reinvented the pre-Geneva "enemy combatant" category in order to place prisoners, in theory, beyond the reach of the Geneva Conventions.^_[18] As Professor Neuman explains in his response, prisoners were brought to Guantánamo under the (mistaken) theory that it is a law-free zone.^_[19] The Administration has fought tooth-and-nail against federal habeas review, ultimately persuading Congress, in the Military Commissions Act, to attempt to strip habeas rights from those designated by the President as "enemy combatants".^_[20] Any "evolution" in the detainee policy-to the extent that it has happened since 2002-has occurred only after the Supreme Court rejected the Administration's extreme legal positions.^_[21] 

Why go to such efforts to avoid legal limits? Although Mr. Bellinger does not mention it, Guantánamo and the other overseas military prisons are centers for interrogation.^_[22] Prisoners are kept in isolation from the world and often each other. It's now well-known that many of them were subjected to highly coercive, even abusive, interrogation techniques that were borrowed from counter-intelligence operations.^_[23] In fact, at the core of the detainee policy is a misguided attempt to import counter-intelligence methods-once limited to the rarefied and clandestine world of the CIA and "black ops"-into military and law enforcement activities, with catastrophic results for the prisoners and the United States.^_[24]

The consequences of this bungled counter-intelligence project can be seen in the plight of one of my clients, Farouq Ali Ahmed.^_[25] At age seventeen, Farouq traveled from Yemen to Afghanistan to teach the Koran to children. He was captured by Pakistani soldiers, handed over to the United States, and taken to Guantánamo. The most serious accusations against Farouq-and the ones likely keeping him at Guantánamo-are that he was seen carrying an AK-47 and wearing fatigues at Osama Bin Laden's private airport, and that he was part of an organized group of mujahadeen captured near Tora Bora.^_[26] These allegations derive entirely from the interrogation of Mohamed al-Kahtani, another prisoner who was kept in an "isolation facility" at Guantánamo for 160 days, during which his cell was continuously flooded with light.^_[27] Al-Kahtani was, among other things, questioned for eighteen to twenty hours per day for forty-eight straight days, threatened with menacing dogs, stripped naked in front of female guards, and made to perform dog tricks with a leash around his neck.^_[28][29] After a few months of such treatment, an FBI agent observed that al-Kahtani was "evidencing behavior consistent with extreme psychological trauma (talking to nonexistent people, reporting hearing voices, cowering in a corner of his cell covered with a sheet for hours on end.)"

Despite the unreliability of the evidence against him, Farouq's CSRT determined that he was an "enemy combatant." An army lieutenant colonel assigned to be Farouq's "personal representative"^_[30] during the CSRT proceedings wrote a rare letter of protest to the tribunal: "I do feel with some certainty that [Farouq's accuser] has lied about other detainees to receive preferable treatment," he wrote. "Had the tribunal taken this evidence out as unreliable, then the position we have taken is that a teacher of the Koran (to the Taliban's children) is an enemy combatant (partially because he slept under a Taliban roof.)"^_[31] Although he has not been charged with any crime, Farouq is still at Guantánamo after five years, and he has not been designated as eligible for release.

Obviously, using abusive and illegal interrogation techniques on prisoners makes it difficult to prosecute them, or others that they inculpate, under U.S. law without suspending many of the fundamental protections ordinarily afforded to criminal defendants. Perhaps that is why the MCA permits the use of evidence obtained from cruel, inhuman, and degrading treatment; allows for the use of hearsay; and enables abusive interrogation practices to be shielded from scrutiny by labeling them as "sources, methods, or activities."^_[32] One hopes that these and other deep flaws in the MCA, including but not limited to the abrogation of habeas corpus, will soon be corrected by new legislation or struck down by the Supreme Court.

Mr. Bellinger asks what should have been done differently. One of his predecessors at the State Department, William Howard Taft IV, warned in early 2002 against ignoring the Geneva Conventions and remarked that the legal advice the President was receiving on how to handle detainees was "seriously flawed," and that its reasoning was "incorrect as well as incomplete."^_[33] He later observed that, once the Conventions were abandoned, "it was predictable that those managing the interrogation would eventually go too far."^_[34] Rather than defending a misguided and failed policy, Mr. Bellinger should follow Mr. Taft's example and advise the Administration to transform that policy into one that adheres to the rule of law.

[1] This article is a response to John B. Bellinger, Remarks on the Military Commissions Act, 48 Harv. Int'l L.J. Online 1 (2007), http://www.harvardilj.org/online/91.

[3] Id. at 8-9.

[4] See Joseph Margulies, Guantánamo and the Abuse of Presidential Power 43 (2006) ("throughout the war on terror, the Administration has appropriated power from particular sources while rejecting the corresponding limits."). The legal argument that the Geneva Conventions do not apply to the conflict with the Taliban and Al Qaeda was made in an early 2002 memo by John Yoo and Robert Delahunty. See Memorandum from John Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, to William J. Haynes, II, General Counsel, Department of Defense, Application of Treaties and Laws to Al Qaeda and Taliban Detainees, Jan. 9, 2002, reprinted inSee Memorandum from President George W. Bush to the Vice President, et al., Humane Treatment of Al Qaeda and Taliban Detainees, Feb. 7, 2002, reprinted in id. at 134. The Torture Papers: The Road to Abu Ghraib 71 (Karen Greenberg and Joshua Dratel, eds., 2005). The President then issued an executive order determining that the prisoners were not entitled to the protections of the Geneva Conventions.

[5] Bellinger, supra note 1, at 8. 

[7] Geneva Convention Relative to the Treatment of Prisoners of War art. 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.  

[8] Geneva Relative to the Protection of Civilian Persons in Time of War art. 27-34, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

[9] Id. art. 3. Geneva IV does not apply to nationals of the United States or its allies. See id. art. 4. But such persons are, at minimum, still protected by Common Article 3.

[10] 4 Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Jean S. Pictet ed., 1958) 4-5. 

[11] Bellinger, supra note 1, at 5

[12] See Mark Denbeaux & Joshua Denbeaux, Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data, available at http://law.shu.edu/aaafinal.pdf, at 2.

[14] See id. at 14 and Appendix A; Margulies supra note 4, at 69.

[16] Id. at 16. 

[17] This hypothetical was posed to a Justice Department attorney by U.S. District Court Judge Joyce Hens Green. Transcript of Oral Argument at 25-27, 355 F. Supp.2d 443 (D.D.C. 2005) (Nos. 02-CV-0299, et al.). For the purposes of the Combatant Status Review Tribunal ("CSRT") proceedings at Guantánamo, an enemy combatant is defined as "an individual who was part of or supporting Taliban or al Qaeda forces", including "any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." Memorandum from Paul Wolfowitz, Deputy Secretary of Defense, to the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, July 7, 2004, available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf.    

[18] See Joanna Woolman, The Legal Origins of the Term "Enemy Combatant" Do Not Support Its Present-Day Use, 7 J. L. & Soc. Challenges 145 (2005).

[19] See Gerald L. Neuman, The Military Commissions Act and the Detainee Debacle: A Response, 48 Harv. Int'l L.J. Online 33, 33 (2007), http://www.harvardilj.org/online/105.

[20] Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600. 

[21] For examples of this rejection, see Rasul v. Bush, 542 U.S. 466 (2004) (upholding federal habeas jurisdiction to determine the lawfulness of detention of non-citizens at Guantánamo ); Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (finding unlawful the military commissions established by the Executive for trying prisoners). 

[23] See, e.g., id. at 131-141,175-181. Officials at Guantánamo continue to insist that the prisoners possess valuable intelligence information, even though most have been there for more than five years. See Karen J. Greenberg, Guantánamo Is Not a Prison, http://www.lawandsecurity.org/get_article/?id=67 (last visited Apr. 2, 2007).

[24] Margulies, supra note 4, at 42-43.

[25] For more details on Farouq's case, see Corine Hegland, Guantánamo's Grip, National Journal, Feb. 4, 2006, at 29-35.

[26] See id. at 25-26.

[27] See id. at 25. 

[28] Margulies, supra note 4, at 85-88 (describing al-Kahtani's interrogation in detail, drawing from the interrogation log and other sources).

[29] Hegland, supra note 25, at 25.

[30] Under the CSRT procedures, the personal representative does not act as an advocate or lawyer for the detainee, and is required to disclose to the tribunal any inculpatory evidence learned from the detainee. See Memorandum from Gordon H. England, Sec'y of the Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantánamo Bay Naval Base, Cuba, enclosure 1(C)(3) and enclosure 3, July 29, 2004, available at http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf.  

[32] See Jonathan Hafetz, Vindicating the Rule of Law: The Legacy of Hamdan v. Rumsfeld, 31-WTR Fletcher F. World Aff. 25, 37 (2007) (analyzing the MCA). 

[33] R. Jeffrey Smith, Lawyer for State Dept. Disputed Detainee Memo; Military Legal Advisers Also Questioned Tactics, Washington Post, June 24, 2004; Memorandum from William H. Taft IV, Legal Adviser for the U.S. State Dept., to the Counsel for the President, Comments on Your Paper on the Geneva Convention, Feb. 2, 2002, available at http://slate.msn.com/features/whatistorture/LegalMemos.html; Torture Papers, supra note 4, at 129. 

[34] William Howard Taft IV, Remarks at American University, Washington College of Law (Mar. 24, 2005), available at http://www.humanrightsfirst.org/us_law/PDF/taft-amer-uni-32405.pdf.