76 Pages Posted: 8 Oct 2009
Date Written: October 7, 2009
This article reiterates a longstanding principle of American democracy that no one, not even the President, is above the law. The Bush Administration's unlawful conduct regarding detainee treatment, secret detention and renditions and domestic spying are addressed as well as its unacceptable claims to power unchecked by international law or federal statutes. Names and paper trails concerning the serial criminality engaged in are documented as well as the types of treaty-based and customary international laws that were violated. Numerous federal cases are addressed that document judicial power to review commander-in-chief decisions, the fact that all persons within the Executive branch are bound by the laws of war, and the fact that Congress has power to place certain limits on commander-in-chief powers during war. Misinterpretations of the Authorization for Use of Military Force are addressed as well as reasons why certain portions of the 2006 Military Commissions Act either violate the separation of powers or are trumped by treaty-based and customary international laws that prohibit inhumane treatment and require access to courts and rights to a remedy.
Keywords: access to courts, Authorization for the Use of Military Force, CIA, commander in chief, common Article 3, Convention Against Torture, cruel, degrading, detention, Framers, Geneva Convention, Guantanamo, human right, inner circle, inhuman treatment, interrogation, torture, war crime, waterboarding
Suggested Citation: Suggested Citation
Paust, Jordan J., Above the Law: Unlawful Executive Authorizations Regarding Detainee Treatment, Secret Renditions, Domestic Spying, and Claims to Unchecked Executive Power (October 7, 2009). Utah Law Review, Vol. 2007, p. 345, 2007 ; U of Houston Law Center, Public Law and Legal Theory Research Paper Series No. 2009-A-26. Available at SSRN: https://ssrn.com/abstract=1485024