Known and Unknown_ A Memoir - Donald Rumsfeld [459]
* That first case,Hamdi v. Rumsfeld, was brought on behalf of Yaser Esam Hamdi, a Saudi national born in Louisiana and, therefore, an American citizen. After his capture in Afghanistan he was transferred to the Navy brig in Norfolk, Virginia. His lawyers challenged the government’s right to hold him as an enemy combatant without a civilian criminal charge. The Supreme Court upheld that right, but ruled that he must be given an administrative process to enable him to contest his designation as an enemy combatant. On the same day the Supreme Court decided Hamdi’s case, it also issued a ruling in Rasul v. Bush. In Rasul, the Supreme Court overturned prior precedents and determined that the detainees in Guantánamo were in fact entitled access to American courts. Though we were not required to release any of the detainees because of these cases, the writing on the wall indicated that the Supreme Court would, for the first time, assert judicial authority over the Guantánamo base and the men held there, despite the facts that they were not U.S. citizens and that they were being held outside the United States.
* Despite Congress’s effort to limit the courts’ role in prosecuting the war on terror with the Military Commissions Act (MCA), the courts again would not agree, rejecting the Congress’s right even to set practical limits on the enemy’s access to courts in wartime. In the 2008 case of Boumediene v. Bush, the Supreme Court’s majority invalidated much of the MCA—After the Court had suggested the administration and the Congress pass such a bill two years earlier in Hamdan. Dissenting Chief Justice Roberts aptly called the perplexing Boumediene decision a “constitutional bait and switch.”18
* In 1998, a Spanish magistrate sought the extradition from Britain of Augusto Pinochet, Chile’s former dictator, on charges of committing torture. Pinochet was visiting London for medical treatment. The underlying rationale was that Chile, though a modern, advanced democracy, was incapable of holding its own former officials to account, so therefore a random foreign court (which happened to be in Spain) could do so. Appallingly, Britain’s House of Lords bowed to this notion of universal jurisdiction and approved Pinochet’s transfer to Spain to stand trial. But before the transfer to Spain occurred, British officials allowed Pinochet to return to Chile to attend to his frail health.
* For example, according to one UN investigator, unmanned air strikes “may well violate international humanitarian law and international human rights law”—including strikes that reportedly have been personally approved by President Obama.22
* After serving in the Department of Defense general counsel’s office, Jack Goldsmith moved to the Justice Department, where he became assistant attorney general of the Office of Legal Counsel (OLC)—the attorney who advises the U.S. government as to what is lawful and what is not. He went on to write The Terror Presidency: Law and Judgment Inside the Bush Administration, a valuable history of the unprecedented legal challenges that faced the Bush administration.
* Article 98 refers to part of the Rome Statute, which established the International Criminal Court. The article allows those nations that are members of the ICC to enter into separate bilateral agreements with other nations that do not want their citizens subject to the ICC.
* However, it should be noted that even the Patriot Act, which passed with bipartisan support in Congress in 2001, became controversial as time went on. An increasing number of legislators seemed to see it and other national security subjects as potent political issues. It is not unreasonable to imagine that the same could well have happened with detainee legislation.
* In response to 9/11, I had worked with Congress to create the U.S. military’s Northern Command as a headquarters in Colorado Springs to defend the American homeland. NORTHCOM’s first combatant