Military Detention Research Articles

Some legal aspects of prosecutor’s participation in cases of administrative offences during application of coercive measures related to restriction of personal freedom of citizens

The article deals with the legal characteristics of the prosecutor’s participation in cases of administrative offences during the application of coercive measures related to the restriction of the personal freedom of citizens.
 The legislation on administrative offences is analysed with relevant conclusions about those categories of cases, the consideration of which is impossible without the participation of a prosecutor.
 The attention is focused on the fact that the departmental acts of the Office of the Prosecutor General of Ukraine provide for mandatory provision for the participation of prosecutors in cases of administrative offences if coercive measures related to the restriction of personal freedom of citizens are applied.
 Parallels are drawn between the direct participation of a prosecutor in the consideration of cases of administrative offences and the prosecutor’s supervision of the relevant bodies that carry out the consideration of cases and apply coercive measures for administrative offences.
 The authors of the article also draw attention to the fact that the prosecutor’s supervision of compliance with the laws in administrative offence cases can be divided into two categories:
 
 Direct participation in the consideration of a case on the administrative offence;
 Supervision over the relevant bodies that review cases and apply coercive measures for administrative 
 
 The authors differentiate coercive measures related to the restriction of personal freedom of citizens, which are used in cases of administrative offences. In particular:
 
 The type of administrative sanction provided for in 24 of the Code of Ukraine on Administrative Offences (hereinafter – CUAO) [1, Art. 24] (for example, administrative arrest, arrest with military detention, forced (administrative) deportation outside Ukraine);
 The measure to ensure proceedings in cases of administrative offences, provided for in Art. 260 CUAO [1, 260] (for example, administrative detention).
 
 The article also draws attention to the conclusions of the European Court of Human Rights regarding the observance of the principle of impartiality in the absence of a prosecutor during proceedings in cases of administrative offences, etc.

Guantánamo's Legacy

The military detention facility at the Guantánamo Bay naval base is the most enduring manifestation of the US “war on terror.” It is also materially and symbolically central to US torture, war crimes, and other egregious violations of law in the post-9/11 era. Since the first detainees arrived in 2002, Guantánamo has been the subject of controversy and debate, as well as a key setting for legal challenges to government policies. This article traces the legacy of the prison and the military commissions across four administrations. It demonstrates that the lack of a common understanding or shared narrative about what Guantánamo means or has meant is a product of entrenched partisanship that characterizes contemporary US politics more broadly. Guantánamo's confounding legacy reflects the lack of a national consensus about the role of laws and courts as guarantors of even the most basic rights.

The boundaries of the carceral state: Accounting for the role of military incarceration

This article extends the study of carceral expansion—currently encompassing criminal, civil, and immigration enforcement—by examining the role of military (and, within that, extraterritorial) incarceration. Drawing on the case of military incarceration of civilians in Israel/Palestine, which since 1967 has accounted for between one-third and one-half of the entire prisoner population, it demonstrates the consolidation of a single carceral apparatus that normalizes military detention and incorporates non-citizens detained in extraterritorial locations. Involving both institutional and spatial dimensions, the article illuminates how the boundaries of the carceral state are relatively independent of formal sovereign borders, legal categories, and institutional arrangements, identifying the military as a carceral state agency. The study thus suggests a framework for an integrated study that accounts for the actual scope of the carceral state and its paradoxical modes of exclusionary inclusion.

Settler-Military Camps: Internment and Prisoner of War Camps across the Pacific Islands during World War II

This paper analyzes the US internment of Japanese and Japanese Americans, Indigenous peoples, and prisoners of war across Hawai‘i, the Marshall Islands, and the Northern Mariana Islands during World War II. Decentering the focus on Japanese American internment as a domestic project of racialized exclusion, it analyzes internment as embedded in a transnational project of US settler militarism. Internment and prisoner of war camps utilized varying logics of racialized military detention, Indigenous displacement, and liberal governance in order to rationalize the evacuation and internment of Asian and Indigenous peoples from lands that the US military wished to use as bases, battlegrounds, and bomb testing areas.

Issues of National Security and Human Rights in Nigeria: A Case Study of Islamic Movement of Nigeria

This paper examined issues of national security and human rights in Nigeria with emphasis on the conflicts between the federal government and the Islamic Movement of Nigeria (IMN). The objectives of the paper included to determine the nature of national security and human rights in Nigeria vis-à-vis the Islamic Movement of Nigeria; identity the contentious issues that triggered the conflicts and undermined national security and human rights between the federal government and the Islamic Movement of Nigeria; determine the implications of continued crackdown of IMN members and detention of their leader, El-Zakzaky and his wife on national security and human rights violations in Nigeria, and make necessary recommendations on how these issues can be amicably resolved without compromising national security and human rights of Nigerians, especially IMN members. This research has become imperative in view of the continued detention of Sheikh Ibrahim El-Zakzaky by the security operatives in Nigeria since 2015 in spite of court orders without concluding the trials. This has caused great concern to Nigerians with daily debates on the implications of this prolonged incarceration of the duo on national security and human rights in a democratic system of government. This paper was anchored on the “Family Theory in Clinical Practice”. The ‘Family Theory’ stressed the need to understand and consider the emotional functioning of a family or group as the basis for religious or political indoctrination, radicalisation, extremism and deviant behaviour that may be antagonistic to acceptable societal norms and values. This paper adopted descriptive research design. Data used for the study were gathered from secondary sources as content analysis was used in the interpretation of data. The paper found that the Islamic Movement of Nigeria (IMN) members were justified in their protest against military crackdown, detention and proscription. The paper observed that the over five year’s detention of Sheikh El-Zakzaky by the Nigerian government without trial amounts to the violation of his constitutionally guaranteed and legally protected human rights. This paper recommends the immediate and unconditional release of the Shiites leader from detention, speedy trial and respect for judicial pronouncements by the Nigerian government without compromising national security and human rights.

The Prohibition against Torture: Why the UK Government is Falling Short and the Risks that Remain

AbstractWhile the UK's official position is that it neither uses nor condones torture or cruel, inhuman and degrading treatment (CIDT), it is now a matter of public and parliamentary record that UK security services and military personnel colluded in rendition, torture, and cruel, inhuman and degrading treatment, both as part of the CIA's Rendition, Detention and Interrogation (RDI) programme, at military detention facilities in Afghanistan and Iraq, and through involvement in the detention and interrogation of prisoners by allied security forces. This paper will explain why the government is falling short of its obligations under international law, and why considerable risks remain that UK intelligence and security services will continue to collude in torture and CIDT.

Organizacyjne i personalne ramy „globalnej wojny z terroryzmem” w świetle orzecznictwa sądów amerykańskich

The Organizational and Personal Framework of the “Global War on Terror” in the Light of the Decisions of the United States Courts The article analyses the law of military detention applicable to the ongoing conflict with Al‑Qaeda and associated forces, to the extent that that law emerges from the jurisprudence of U.S. federal courts, and particularly of the D.C. Circuit. It discusses four major issues: the types of organizations against which military force can be used in accordance with the Congressional authorization, the range of persons subject to military detention in connection with such use of force (in terms of both legal categories and factual predicates), the scope of the battlefield on which the use of force is authorized, and the extent to which American citizens or foreigners lawfully present in the U.S. territory enjoy special immunity from military detention. The article concludes that the impact of the D.C. Circuit decisions on those questions extends beyond the issue of military detention, and provides the general legal framework applicable to other military operations directed against terrorist organizations in the Middle East, such as target strikes or the campagin against the self‑styled Islamic State.

Kissing the Dead Body: Conjuring “Warm Data” in Archives of U.S. Global Military Detention

Kissing the Dead Body: Conjuring “Warm Data” in Archives of U.S. Global Military Detention

Defining Miscarriages of Justice in the Context of Post 9/11 Counter Terrorism

This paper examines a number of different definitions of miscarriages of justice including a broad and influential definition provided by Clive Walker in the 1990’s that extends miscarriages of justice well beyond factual innocence or even wrongful convictions to include a variety of rights violations and unjust laws. It argues that Walker’s definition applies well to post 9/11 counter-terrorism. Moreover, it raises troubling questions for both criminalization strategies and the use of various alternatives to the criminal law including military and immigration detention and targeted killing. Nevertheless the paper concludes that a Walker’s broad rights based approach to understanding miscarriages of justice has not been embraced in common consciousness. It suggests that the best examples of post 9/11 recognitions of miscarriages of justice fit more closely a more limited factual innocence model that is unsuited to apply to modern terrorism prosecutions and most other forms of modern counter-terrorism. It also concludes that this factual innocence model has focused on innocent rendition victims and innocent victims of targeted killed and has not yet produced recognized wrongful convictions such as the famous Irish wrongful convictions recognized before 9/11 and this raises questions whether post 9/11 counter-terrorism offences have defined innocence out of existence.

The 9/11 Terror Cases: Constitutional Challenges in the War against Al Qaeda

In retrospect, it now seems obvious that the zealous counterterrorism policies pursued by the U.S. government in the aftermath of the September 11 terrorist attacks would provoke years of litigation—and, in some cases, sustained pushback from the federal courts. But as Allan A. Ryan explains in this usefully concise and succinct volume, that endgame was hardly obvious at the beginning, as government lawyers pushed the envelope not only on substantive authorities ranging from military detention and interrogation to surveillance and immigration roundups but more fundamentally on the role of the courts as well, arguing for an almost nonexistent judicial role in supervising counterterrorism policy. Ryan’s volume recounts the story behind, and rulings in, four major U.S. Supreme Court rulings militating rather sharply in the other direction, including a pair of 2004 decisions involving the government’s power to detain (and the courts’ power to review the detention of) enemy combatants; a 2006 ruling striking down the first iteration of the Guantánamo military commissions; and a landmark 2008 precedent rejecting efforts by Congress to prevent the courts from hearing habeas petitions from noncitizens held without trial at Guantánamo. Ryan’s book offers not just a fantastic and accessible exegesis of these complex rulings but a narrative of the stories behind these cases that illuminate their personal, political, and constitutional stakes.

The Predicates of Military Detention at Guantánamo: The Role of Individual Acts and Affiliations

The military detentions at Guantánamo have provoked intense controversy. Judges, legislators, and military officials disagree sharply about the scope of detention authority. To date, little is known about the granular determinants of decisions to transfer detainees from custody at the Cuban base or to prolong their detention. This article exploits a novel data set of classified documents disclosed by the Wikileaks organization to explore two questions now dividing officials, legislators, and judges. First, what are the detainee actions and affiliations that predict longer detentions? Second, what is the relationship between a determination that a detainee committed certain acts and the further inference of affiliation with a proscribed terrorist organization? These inquiries isolate both continuities and divergences from the law “on the books.”

Modification of conditions of enduring the «Detention of the convicted military in a penal battalion» punishment: problems of the standard regulation and solutions to them

In the article the author draws attention to the expediency of the Institute of change of the convicted detention conditions existence with its standard misregulation towards the convicted military, who endure the "Detention in a penal battalion" punishment. Changing the conditions of the convicted detention changes the legal status of the convicted, giving them the opportunity to use a number of additional privileges or to limit them. Transferal of the convicted, if appropriate, to other detention conditions serves as a specific mechanism of the punishment implementation fullness regulating, as ensuring of proper execution of duties by the convicted and possibility of their aversive behaviour neutralization. Changing the convicted detention conditions realizes the principle of the punishment execution differentiation and its individualisation in relation to the convicted. To stimulate the emergence of the desire to reform among the convicted to "Detention in a penal battalion" punishment military, changing for better of their readiness to self-directed behavior and adherence, preventing their pursuit of illegal behavior strengthening, ensuring the principle of the punishment execution differentiation and its individualisation realization, standard regulation of the modification of conditions of enduring the "Detention of the convicted military in a penal battalion" punishment by the security sectors implementation has been suggested. Depending on behaviuor of the convicted, their desire to reform or vice versa, the continuation of the anti-social, illegal activity, violation of the punishment enduring rules the security sector with general, light and intense detention conditions as well as moral and material incentives of the positive behavior of the convicted and the conditions of lodgement in every of the sectors have been defined. In a sector with light conditions of detention except the increase of the monthly expenses of the convicted, the frequency of short and extended meetings with relatives, the ability of the convicted to apply for parole from enduring of punishment or replacement of the unserved part of punishment with a more lenient punishment after enduring at least half of the sentence is an additional incentive provided, as well as the possibility of inclusion of the "Detention in a penal battalion" punishment enduring into a general period of service. In case of transferal, in the sector with intense detention conditions corresponding legal restrictions are significantly narrowed. Justifying the point of the convicted detention conditions change as a result of changed or transformed into permanent positive or negative behavior of the convicted, the author suggests to define measures of encouragement and disciplinary penalty such as an inclusion into or exclusion from the list of those, who reform, by changing the conditions of the convicted military detention in a penal battalion and sending them to sectors with light or intense detention conditions.

The Predicates of Military Detention at Guanttnamo: The Role of Individual Acts and Affiliations

The military detentions at Guantanamo have provoked intense controversy. Judges, legislators, and military officials disagree sharply about the scope of detention authority. To date, little is known about the granular determinants of decisions to transfer detainees from custody at the Cuban base or to prolong their detention. This article exploits a novel data set of classified documents disclosed by the Wikileaks organization to explore two questions now dividing officials, legislators, and judges. First, what are the detainee actions and affiliations that predict longer detentions? Second, what is the relationship between a determination that a detainee committed certain acts and the further inference of affiliation with a proscribed terrorist organization? These inquiries isolate both continuities and divergences from the law “on the books.”

Extraterritorial Criminal Jurisdiction

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches’ traditional foreign relations powers. And in the name of protecting defendants’ presumed interests, the new due process jurisprudence may end up badly undermining them by incentivizing a turn to harsher, alternative national security measures—drone strikes, for example, and military detention in Guant´anamo Bay. Moreover, because of certain structural features of the international law enforcement system, U.S. courts have applied the new due process jurisprudence generally—perhaps even exclusively—in precisely that class of cases to which it should not be applied. None of this needs to be. Borrowing from choice-of-law doctrine, I argue that a coherent due process jurisprudence would focus solely on the unfairness, if any, that flows from actual conflicts between federal criminal law and the local criminal law of the place where the defendant acted. A due process jurisprudence reformulated to focus on actual conflicts protects both the liberty of criminal defendants and global public safety.

Capturing humanitarian war: the collusion of violence and care in US-managed military detention

In this paper I explore the complex economies of violence that circulate through the US military's enactments of battlefield capture and military detainment. I highlight the ways in which these practices relate to the humanitarian objective of carrying out warfare both for and with humanity. I first outline the emergence of an explicitly protective custody within the landscape of war, describing the broad historical contours of war prisoner treatment. I then detail the ways in which humanitarian law's call to care for detained enemy bodies has itself become linked with highly specific forms of political and bodily violence. Next, I argue that this copractice of care and violence in the camps is underpinned by a relational understanding of humanitarianism. Finally, I turn my attention to the ways in which the battlefield encounter has become an increasingly technical enterprise, one in which questions surrounding the ethical treatment of prisoners are subsumed into an evolving assemblage of spaces, means of data collection, and discursive performances that reframe the limits of military violence and generate new vulnerabilities.

Ramy prawne reżimu detencji wojskowej w prawie amerykańskim w świetle aktualnego orzecznictwa

Military detention framework in American law – analysis of current case law 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.

Legal but Unethical: Interrogation and Military Health Professionals

United States military health professionals who have served at military detention facilities in Afghanistan, Guantanamo Bay, Cuba (Guantanamo), and Iraq, have been labeled by some as torturers or war criminals for their interrogation-related activities. In portraying such professionals in this light, some commentators erroneously suggest that law proscribes health professionals’ interrogation-related conduct and holds them to a different standard than others involved in interrogation. This article demonstrates there is a significant gap between what law and professional ethics require, and concludes with an argument that this divide is harmful to detainees, national security, and health professionals.

Beyond the Public Eye

During the War on Terror, increased secrecy and noncompliance with Freedom of Information Act requests allowed military detention programs to function with systematic efficiency in Guantanamo, Iraq, Afghanistan, and numerous other sites. Often, the released torture memos were heavily redacted and nearly unreadable. Through close readings of redacted documents, this article argues that the visual politics of redaction offer an aesthetic point of entry that brings into focus the limits of transparency for making visible necropolitical systems of violence. Although incongruent with the intention of concealing text, redacted spaces paradoxically can make contrapuntal readings easily available, as they visualize the ungraspable violent dimensions of detainee torture.

Power and Constraint: The Accountable Presidency after 9/11. By Jack L.Goldsmith. New York: W. W. Norton and Company, 2012. 336 pp.

Power and Constraint: The Accountable Presidency after 9/11. By Jack L. Goldsmith. New York: W. W. Norton and Company, 2012. 336 pp. Books on presidency often breathlessly bemoan cult of presidential power, lament that separation of powers at an end, and claim that executive power unbounded. In highly nuanced and thoughtful treatment of post-George W. Bush presidency, Jack Goldsmith depicts remarkable moderation today's national executive. He tells story of new developments, which belie apocalyptic claims that we are living an era of unrestrained executive The result not nightmare (see Peter M. Shane, Madison's Nightmare: How Executive Power Threatens American Democracy [Chicago: University of Chicago Press, 2009]), but, rather, that the father of Constitution would smile (pp. 252, 243). In Power and Constraint, as his earlier The Terror Presidency: Law and Judgment Inside Bush Administration (New York: W. W. Norton and Company, 2009), Goldsmith rejects aggressive and often unilateral counterterrorism programs of early Bush administration, and praises pushback that moderated those policies and gave them firmer legal footing. After presidential excesses following 9/11, various institutions pushed back harder against Commander Chief than any other war American history, which, on balance, was very healthy for presidency and for national security (p. 241). Both of Goldsmith's works owe much to Arthur Schlesinger, Jr.'s The Imperial Presidency (Boston: Houghton Mifflin, 1973), which, at times, surprisingly friendly to executive power. And with theme that constraints ultimately strengthen presidency and render it more effective (p. xv), he channels insight of Harvey C. Mansfield, Jr.'s Taming Prince: The Ambivalence of Modern Executive Power (New York: The Free Press, 1989) that executives draw strength by being subordinate to law. Goldsmith professor at Harvard Law School, and his legal roles during Bush administration were with Department of Defense (2002-03) and Office of Legal Counsel (2003-04), but account here resembles political history as much as formal legal analysis. Although everyone from former Vice President Dick Cheney to ACLU expected that new Obama administration would dramatically change Bush counterterrorism programs, most of them had been tempered to such an extent that Obama administration kept virtually all of them. would distinguish between some of steps that were taken immediately after 9/11 and where we were by time I took office, President Obama said March 2009 (p. 39). The Obama administration today regards counterterrorism as an armed conflict rather than criminal matter, engages indefinite military detention, has initiated military commission trials for war crimes; shops for best forum which to prosecute terrorists; continues to operate Guantanamo Bay, has not changed executive branch positions on habeas corpus rights for detainees abroad, still delivers up prisoners to other countries for interrogation; has increased secret government surveillance, and has radically expanded global regime of targeted killing. In 2010, American Civil Liberties Union (ACLU) warned that Obama will enshrine permanently within law policies and practices that were widely considered extreme and unlawful during Bush administration. Although current administration made changes to Central Intelligence Agency interrogation and black sites, Goldsmith notes that ACLU prediction is basically what has happened (p. 19). Rejecting views that we are in an age after separation of powers, or that the legally constrained executive now an historical curiosity, Goldsmith documents a remarkable and unnoticed revolution wartime presidential accountability. …

Alien Enemies in Julie Otsuka’s When the Emperor Was Divine

This essay explores a recent reimagination of Japanese internment in order to suggest a way of understanding Asian American subjects as something more than immigrants: they are enemies. Julie Otsuka’s 2002 novel When the Emperor Was Divine subjects an unnamed, typical American family to military detention, evacuation, and forced incarceration. Compelled to identify with Enemy Japan, the members of the family transform into alien, treacherous beings. My reading focuses on small expressions of allegiance to Emperor Hirohito, who becomes a dangerous and tantalizing figure of desire in the novel.