Marcia Pereira (University of Miami - School of Law) has posted The “War on Terror” Slippery Slope Policy: Guantanamo Bay and the Abuse of Executive Power on SSRN. Here is the abstract:
On September 11, 2001, the United States, the most powerful democracy in the world, was struck by a horrible event: aircraft hijackers' attacks to the heart of the City of New York put an end to the lives of 2,973 innocent civilians. An international terrorist organization, Al Qaeda, took responsibility for the act. In response to the attacks, the U.S. Government Executive branch put in place a series of highly controversial procedures. Amongst these procedures, the Executive branch claimed authority to detain indefinitely individuals who were arbitrarily labeled as enemy-combatants.
In light of the foregoing events, the central goal of this Article is to assess the legitimacy of current presidential policies toward the detainees held in Guantanamo. Specifically, I will analyze the dangers of a system that allows equivalent detentions for the following vastly different groups: 1) those detained and yet to be adjudged enemy combatants; 2) those adjudged to be enemy combatants, who may or may not be subject to military commissions; and 3) those adjudicated and found not be enemy combatants at all. The Article, however, will do more than analyze the nature of these detentions. On the one hand, it will question the disparate treatment visited upon non-citizen enemy combatants, as opposed to the constitutional safeguards provided to U.S. citizen enemy-combatants. Additionally, with regard to the authorization of this treatment, this Article will challenge the U.S. Supreme Court to meaningfully accept the burden of ensuring that constitutionally required separation of powers are observed between the branches.
Part I of this Article presents an analysis of the Executive actions which led to the creation of Guantanamo Bay and the use of Military Commissions, and questions whether the Executive branch holds the power to undertake such actions in light of the principles of separation of powers and checks and balances among the three branches of Government. In developing the analysis of relevant congressional actions, Part II will argue that separation of powers principles are at heart of the organization and function of the U.S. Constitution. This Part will further challenge these congressional actions as part of a discussion about whether certain congressional delegations of legislative power to the President were appropriate.
Part III will develop a discussion on the critical role the Judiciary plays in directing a more active congressional response or “check” on presidential actions. This Article suggests that such a role has not been satisfied to the level the Founders intended. A critical reading of the Federalist Papers evinces that the Founders spelled out the necessity that checks and balances be preserved. By virtue of the U.S. Supreme Court review of the substance of legislation Congress enacted, the Framers' aimed at fostering a system in which individuals liberties should remain protected as enunciated in the Constitution. This part will then question whether the Executive has confined itself to the constitutional boundaries. In addition, this Part will briefly discuss the concept of enemy-combatants and what the consequences are of being labeled as such, including what implications can arise from being a U.S. citizen as opposed to a non-U.S. citizen.
Part IV of this Article will develop attempts to provide for alternative solutions to the detainees' unbounded detention. It will then analyze the impact of current U.S. presidential and congressional choices with respect to Guatanamo Bay on foreign policy, including international treaties to which the U.S. is a signatory. In so doing, this Article suggests that U.S. policies are likely violative of Article Fourth of the Geneva Conventions which provides foreign individuals' protections from submission to military tribunals prior to having been declared prisoners of war (POW) and having charges properly filed against them. Guatanamo Bay Military commissions have proscribed procedural and evidentiary rules, which are distinct from those of military courts-martial, or other U.S. federal courts. This Article will suggest that these rules fall short of what is required for these proceedings to be endorsed as acceptable under our domestic law and treaty obligations.
This Article concludes by suggesting that even though the Uighurs release may mark an initial showing of U.S. Government progress in detainee treatment, it appears that a more active and stricter judicial intervention may be necessary to secure rights for other detainees. Such a posture is necessary to avoid abusive encroachments of power among the branches of Government, and to ensure the effectiveness of checks and balances erected by the Founding Fathers. Furthermore, judicial intervention is critical to persuade the international community that the U.S. still respects due process of law and its obligations to ensure the protection of fundamental human rights under international treaties, even in a 'theater of war.'
