42 | Towards the Closure of Guantanamo 74. 75. 48 49 50 51 these prisoners. In the aftermath of the attacks of September 11, 2001, the United States Congress passed a joint resolution called the Authorization for the Use of Military Force (“AUMF”) that broadly authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks […] in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” 48 Therefore, detention and trial of such alleged terrorists is undertaken pursuant to the President’s Commander in Chief and foreign affairs powers. On November 13, 2001, President George W. Bush signed Executive Order No. 66 authorizing the “detention, treatment, and trial of certain non-citizens in the war against terrorism.”49 The order defines the individuals subject to it as members of the organization known as Al-Qaeda, individuals who have engaged in, aided, or abetted acts of international terrorism or individuals who have knowingly harbored such international terrorists. The order further provides that the President alone would determine which individuals fit within that definition. It also establishes that these individuals shall be tried by military commissions and that they “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.” 50 Pursuant to the AUMF and the above-mentioned executive order, hundreds of individuals were captured in Afghanistan and other countries during the months following the attacks of September 11, 2001. The United States Government chose to detain these prisoners in Guantanamo Bay considering that federal courts were unlikely to exercise jurisdiction to consider legal challenges by detainees held without charge or trial. On December 28, 2001, following proposals to detain AlQaeda and Taliban members at Guantanamo Bay, Deputy Assistant Attorneys General Patrick Philbin and John Yoo sent a memorandum to the Department of Defense addressing the question as to whether federal courts would have jurisdiction to entertain a petition for a writ of habeas corpus filed by an alien detained at Guantanamo. 51 The memorandum concludes that “the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo].” It further notes that the agreement between the United States and Cuba for the lease of Guantanamo Bay expressly provides that “the United States recognizes the continuance of the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). Available at: http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Available at: http://fas.org/irp/offdocs/eo/mo-111301.htm Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, Sec. 7(b)(2). Memorandum for William J. Haynes, II, General Counsel, Department of Defense, re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba, from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, U.S. Department of Justice, December 28, 2001. Available at: http://www.torturingdemocracy.org/documents/20011228.pdf Organization of American States | OAS