Military detention framework in American law – analysis of current case law Cover Image
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Ramy prawne reżimu detencji wojskowej w prawie amerykańskim w świetle aktualnego orzecznictwa
Military detention framework in American law – analysis of current case law

Author(s): Dariusz Stolicki
Subject(s): Politics / Political Sciences
Published by: KSIĘGARNIA AKADEMICKA Sp. z o.o.
Keywords: military detention; Guantanamo; “war on terror”; law of national security

Summary/Abstract: The practice of military detention of persons captured during the “global war on terror” has raised controversy both in the United States and abroad. This article, being the first in a series of articles analyzing the post‑2001 case law on military detention, focuses on the basic legal framework. The principal legal basis for military detention is the 2001 Congressional Authorization of Use of Military Force against organizations responsible for 9/11 attacks. Bush and Obama Administrations’ claim that the AUMF authorizes military detention has been accepted by the Supreme Court in a 2004 case Hamdi v. Rumsfeld and codified by Congress in 2011. The article briefly considers and rejects main objections against its constitutionality. More complex are the issues raised by the application of other legal rules that potentially apply to military detention: Due Process clause of the U.S. Constitution and international law of armed conflict, but under the current D.C. Circuit case law, neither of them limits the President’s detention authority. Instead, judges decide habeas corpus claims brought by the detainees on the basis of judge‑made common law rules.

  • Issue Year: 11/2014
  • Issue No: 27
  • Page Range: 21-59
  • Page Count: 39
  • Language: Polish