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Lecture 4

Readings Week 4: Online Duffy

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Western University
Political Science
Political Science 3388E
Jennifer Mustapha

Readings Week 4 Online Duffy ABSTRACT y Habeus corpus the recognition that all detainees are entitled to this basic right irrespective of their nationality y Has been nailed as a victory of the rule of law y Executive violations of HR have gone in the name of securityy An inquiry into current litigation practice can serve several purposes1 Provides an insight into key human rights issues arising in global war on terror The practices of litigation in relation to international terrorism provides a prism through which some of the key characteristics of its objectives and modus operandi 2 A brief survey of litigation practice may provide a comparative framework for assessing the impact and limitations of that litigation itself The role of the courts in responding to the human rights challenges posed by the war on terror y Post 911 5 groups of issues y Arbitrary detention extraterritorial application of human rights obligations torture and related safeguards extraordinary rendition and the spreading reach of the terrorist label and the notions of guilt by association 1 ARBITRARY DETENTION y Focusing mainly on two issues the right to Habeus Corpus and lawfulness of trial by military commission y This 2004 case was seen to represent an important marker of executive accountability albeit in the limited cases where the detainees are US nationals y The decision that the military commissions were unlawful because they violated these basic provisions was an important and positive decision in terms of rights protection y Executives conduct violated international and domestic law y Congress responded in 2 ways a It determined that the relevant international law could no longer be relied upon as a source of rights in habeus corpus or other civil proceedings against US personnel b It provided that courts would not have jurisdiction to hear habeus corpus applications by an person determined to be an enemy combatant or awaiting such determination thus extending the jurisdictionstripping provisions to detentions anywhere y Declared unconstitutional s7 of the 2006 Military Commissions Act which denied Habeus corpus to any detained foreign enemy combatants
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