The terrorist attacks on American territory on September 11, 2001, on the one hand, were a continuation of the previous practice of anti-American terrorism, and on the other, they had unprecedented consequences for the United States and its policy in the world. Despite the fact that the threat of terrorism has been on the national security agenda for many years, it was only after the events of September 11 that it became the highest priority on the agenda of the military-political leadership of the United States, forcing it to rethink the concept of ensuring security, as well as a foreign policy strategy. After 9/11, the Bush administration claimed that it is responsible for the protection of the US from such attacks in the future. This administration validated a plethora of its further actions as an integrated element of the commander-in-chief powers provided to the President of the country. Such an assumption is grounded on Article II of the Constitution of the United States. Nevertheless, a number of decisions that Bush brought into life were controversial. In particular, these were the treatment of prisoners in captivity, as well as domestic surveillance.
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In 2001, Bush decided to sign a military order that created several military tribunals that aimed to try non-US citizens who were engaged in al Qaeda, as well as participated in terrorist attacks against the US. It should be noted that the mentioned tribunals operated differently from the established legal tradition of the country. The President soluted to hold the terrorists at Guantanamo, providing no opportunity to utilize habeas corpus. Hence, these terrorists had no possibility to argue whether the United States acted in a legal way within the scope of their case; from this perspective, they could be imprisoned indefinitely. In Boumediene v. Bush (2008), the majority opinion was that these terrorists had a right to a writ of habeas corpus, arguing that liberty and security should be reconciled by the power of law. On the other hand, Bush defined the accused as unlawful enemy combatants, not prisoners of war – it meant that the terrorists could not be protected by the fundamental provisions of the Geneva Conventions. This made Bush’s approach more legitimate to an exact extent.
It should be noted that trials against enemy combatants were held in the US Supreme Court. The latter ruled – in Hamdan v. Rumsfeld (2006) – that Bush went far beyond the President’s authorities, given his decision to establish military tribunals with no approval of Congress. The Supreme Court stated, “the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war” (Hamdan v. Rumsfeld, 2006). However, Bush developed the Military Commissions Act of 2006 in conjunction with Congress, a part of which was claimed to be unconstitutional due to the provisions on the suspension of habeas corpus.
In Hamdi v. Rumsfeld (2004), the majority stressed that the framework of Authorization to Use Military Force (AUMF) was restricted to ones who combated against the US in particular areas as a part of the al Qaeda network. AUMF was a crucial foundation of the “war against terrorism” available for the Bush administration. The court stated that the mentioned restriction was so “fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force” that Congress credited Bush to utilize (Hamdi v. Rumsfeld, 2004). It seems reasonable to conclude that despite the fact that the Bush administration’s doctrine was controversial, there was – to an exact extent – a legitimate foundation for its implementation.
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