Waging War Within the Constitution
42 Tex. Tech. L. Rev. 843
49 Pages Posted: 12 Mar 2014 Last revised: 17 Jul 2014
Date Written: March 10, 2014
This Article examines the United States' response to the September 11, 2001 attacks by Al Qaeda from my perspective as Counsel to the President and then later as Attorney General. It reviews the actions of government lawyers and how federal courts have judged the implementation of U.S. government policy. It explains that U.S. government officials quickly understood that our nation was confronted with a non-state enemy fighting an unconventional war. This forced us to make a number of difficult decisions quickly about how best to fight this threat in a manner consistent with the United States' domestic and international legal obligations. Soon following the attacks, President George W. Bush and the U.S. Congress determined, in essence, that the actions against the United States were more than crimes.
The Authorization for the Use of Military Force, passed by Congress on September 18, 2001, reflected a belief that the murder of over 3,000 innocent Americans constituted an act of military aggression against the United States. In the months following the September 11, 2001 attacks, the U.S. government declared that, as a matter of law: (1) the Geneva Conventions did not apply to the conflict between the United States and al Qaeda and (2) members of al Qaeda and the Taliban were not entitled to prisoner of war protections under the Geneva Conventions. These actions formed the foundation of subsequent decisions, including the detention policy at Guantanamo Bay, Cuba. There were, at times, strong and differing views within the Bush Administration and Congress about these issues.
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