Thesis advisor: Shep Melnick / Most of the literature on the separation of powers in the war on terror vastly overstates the power of the presidency and pays little attention to the respective roles of Congress, the courts, and the bureaucracy in prosecuting that conflict. Scholars – especially those in the legal academy – have consistently failed to appreciate the ways in which the president has been, and continues to be, checked and constrained by a variety of forces. In my dissertation, I engage in highly detailed case studies of U.S. law and policy with respect to detention and military commissions in the war on terror. I pay special attention to the complex interactions that occurred within and between our governing institutions in these policy areas. There are two central arguments that come out of my research and run through my case studies. First, the political scientist Robert Kagan’s work on “adversarial legalism” is no longer simply applicable to the domestic policy realm. The proliferation of legal rules and extensive litigation has increasingly come to characterize foreign affairs as well, with important consequences for how the U.S. implements its national security policies and fights its armed conflicts. In short, adversarial legalism has gone to war. Second, loose talk about the “unitary” nature of the executive branch is misleading. The executive branch is a sprawling bureaucracy made up of diverse actors with different perspectives, preferences, and norms, and that bureaucracy has interacted with Congress and the courts in surprising ways to constrain the presidency in the war on terror. / Thesis (PhD) — Boston College, 2016. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Political Science.

The objective of this thesis is to explore and analyze some of the major difficulties, challenges, and debates involved with the issue over which status and rights to afford to those detained in the War on Terrorism, in particular the Guantánamo detainees. Unlike conflicts of the past, the War on Terrorism is being waged against very unconventional enemies. Because of this, the Bush Administration, foreign governments, human rights groups, and both governmental and non-governmental organizations are currently engaged in a critical debate over which legal status and rights should be afforded to these enemies upon their detention. If any agreement is to be made regarding the legal status of the Guantánamo detainees, it is important to obtain a basic understanding of the issue itself as well as both sides of the debate. In order to do this, three core issues are explored. Firstly, what are President Bushs strategic reasons for refusing to grant the Guantánamo detainees prisoner of war (POW) status and what are the steps that the Administration has taken to ensure that its strategies in approaching the War on Terror are protected? Secondly, what are the counter arguments to the Bush Administrations position, who is voicing these arguments, and why? Finally, what impact does the Administrations position have on how and to what extent the War on Terror is waged? Once these questions have been explored, the thesis concludes that the Bush Administrations approach to the War on Terror has proven to be reckless. The security threat posed by terrorism should not obscure the importance of human rights. An anti-terrorism policy that ignores human rights is a gift to terrorists. It reaffirms the violent instrumentation that breeds terrorism as it undermines the public support needed to defeat it. A strong human rights policy that respects the detainees right to due process and to not be subjected to torture, cannot replace the actions of security forces, but is an essential complement. A successful anti-terrorism policy must endeavor to build strong international norms and institutions based on human rights, not provide a new rationale for avoiding and undermining them. If the Bush Administration remains on its present path, the rights of the Guantánamo detainees will continue to be violated and, as a result, threaten the rights of others who depend on the fair application of the law.

The objective of this thesis is to explore and analyze some of the major difficulties, challenges, and debates involved with the issue over which status and rights to afford to those detained in the War on Terrorism, in particular the Guantánamo detainees. Unlike conflicts of the past, the War on Terrorism is being waged against very unconventional enemies. Because of this, the Bush Administration, foreign governments, human rights groups, and both governmental and non-governmental organizations are currently engaged in a critical debate over which legal status and rights should be afforded to these enemies upon their detention. If any agreement is to be made regarding the legal status of the Guantánamo detainees, it is important to obtain a basic understanding of the issue itself as well as both sides of the debate. In order to do this, three core issues are explored. Firstly, what are President Bushs strategic reasons for refusing to grant the Guantánamo detainees prisoner of war (POW) status and what are the steps that the Administration has taken to ensure that its strategies in approaching the War on Terror are protected? Secondly, what are the counter arguments to the Bush Administrations position, who is voicing these arguments, and why? Finally, what impact does the Administrations position have on how and to what extent the War on Terror is waged? Once these questions have been explored, the thesis concludes that the Bush Administrations approach to the War on Terror has proven to be reckless. The security threat posed by terrorism should not obscure the importance of human rights. An anti-terrorism policy that ignores human rights is a gift to terrorists. It reaffirms the violent instrumentation that breeds terrorism as it undermines the public support needed to defeat it. A strong human rights policy that respects the detainees right to due process and to not be subjected to torture, cannot replace the actions of security forces, but is an essential complement. A successful anti-terrorism policy must endeavor to build strong international norms and institutions based on human rights, not provide a new rationale for avoiding and undermining them. If the Bush Administration remains on its present path, the rights of the Guantánamo detainees will continue to be violated and, as a result, threaten the rights of others who depend on the fair application of the law.