국가안보, 법치주의 그리고 '대테러 전쟁' : 미국의 관타나모 수용소를 둘러싼 주요 법적 쟁점 고찰 = National Security, Rule of Law and the "War on Terror" - An Analysis of Legal Issues Related to the U.S. Guantanamo Detention Facilities

다국어 초록 (Multilingual Abstract)

This article attempts to identify core legal issues in relation to the complex controversy in the United States surrounding the Guantanamo detention facilities, and to analyze how this controversy has evolved throughout the interactions among the three branches of the government within the constitutional framework under the Bush and the Obama administrations. The core legal issues include: the status of the "enemy combatants" under the law of armed conflict based on the Geneva Conventions; the applicability of habeas corpus to the Guantanamo detainees under the U.S. laws; the question of the so-called "enhanced interrogation techniques," and the use of military commissions to try terrorist suspects. Many of the Bush administration's legal positions towards the Guantanamo detainees have been struck down by a series of decisions by the U.S. Supreme Court concerning the legal rights of the detainees and the military commissions. In its attempts to remedy the damages caused by what is believed to be the unilateralist approach in foreign affairs and the disregard for international law of the previous administration, the Obama administration has sought to put the fight against terrorism back on the rule of law basis. One of the most significant efforts by the Obama administration in this regard is its decision to close the Guantanamo detention facilities. So far, the administration has not been successful due to the political objections by the Congress. The overall discourse regarding the Guantanamo may provide certain useful insights to the international law scholarship. First, the Obama administration's stance on the closure of the Guantanamo detention facilities constitutes the most recent prominent answer to a classical question of why states obey international law. Second, the genuine legitimacy or legality of thc use of force cannot be fully explained by the jus ad bellum only; it should also comprise the questions relating to the treatment of the members of the enemy forces. This observation is especially relevant in light of the current trend in which the states have to deal with the individuals associated more with international terrorist organizations than with their countries of origin. Third, the whole Guantanamo experiences renewed the call for deeper understanding of the relations between international human rights law and international humanitarian law systems. Fourth, the U.S. Supreme Court cases over the habeas corpus for the Guantanamo detainees remind us that the sovereignty of a nation is an open, indefinite notion which can be a subject of fruitful research in the field of international law.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 부시 행정부의 '대테러 전쟁'과 관타나모 수용소
• Ⅲ. 오바마 행정부의 관타나모 수용소 폐쇄 추진
• Ⅳ. 결론 : 관타나모 수용소와 국제법

참고문헌 (Reference)

1 "미 국무부 보도자료"

2 "www.whitehouse.gov/theˍpressˍoffice/Remarks-by-the-President-On-National- Security-5-21-09"

3 "www.whitehouse.gov/the-press- office/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy"

4 "www.washingtontimes. com/weblogs/watercooler/2010/jan/27/bloomberg-now-says-no-trying-ksm-nyc"

5 Joseph C. Sweeney, "supra note 8"

6 Jennifer K. Elsea, "supra note 56"

7 Linda Greenhouse, "supra note 42"

8 David W. Glazier, "supra note 40"

9 Michel P. Scharf, "supra note 20"

10 John Yoo, "supra note 16"

11 Jack Goldsmith, "supra note 15"

12 "http://www.icrc.org/eng/assets/files/other/whatˍisˍihl.pdf"

13 "http://www.gpo.gov/fdsys/pkg/PLAW-109publ148/html/PLAW- 109publ148.htm"

14 "http://www.defense.gov/news/ newsarticle.aspx?id=62389"

15 "http://dspace.wrlc.org/doc/ bitstream/2041/70964/00355ˍ020801ˍ001display.pdf"

16 "http:// www.state.gov/r/pa/prs/ps/2009/03/120298.htm"

17 Harold Hongju Koh, "Why Do Nations Obey International Law?" 106 (106): 1997

18 John Yoo, "War by Other Means: An Insider's Account of the War on Terror" Atlantic Monthly Press 142-, 2006

19 "Two Senate Democrats want KSM trial out of NYC"

20 "Treaty Between the United States of America and Cuba"

21 "Thomas Buergenthal, International Human Rights"

22 Jack Goldsmith, "The Terror Presidency: Law and Judgment inside the Bush Administration" W.W. Norton & Company 108-, 2007

23 Paul Eden, "The Relationship between International Humanitarian Law and International Human Rights Law" 14 (14):

24 Paul Kahn, "The Question of Sovereignty" 40 (40):

25 "The New Iraq Crisis; Donald Rumsfeld Should Go"

26 Linda Greenhouse, "The Mystery of Guantanamo Bay" 27 (27): 4-5, 2008

27 James E. Pfander, "The Limits of Habeas Jurisdiction and the Global War on Terror" 91 (91): 501-, 2006

28 "The Final Report of Guantanamo Review Task Force"

29 Ryan Goodman, "The Detention of Civilians in Armed Conflict" 103 (103): 60-74, 2009

30 Jane Mayer, "The Dark Side" Anchor Books 327-335, 2009

31 "Supra note 21. 부시 행정부의 군사위원회 관련 논거는 미 법무부 법률자문실의 2001년 11월 6일자 검토의견(Legality of the Use of Military Commissions to Try Terrorists)에서 상세히 설명되고 있다"

32 David W. Glazier, "Still a Bad Idea: Military Commissions Under the Obama Administration" 7-28, 2010

33 Michael P. Scharf, "Shaping Foreign Policy In Times Of Crisis" Cambridge University Press 187-193, 2010

34 John Yoo, "Sending a Message"

35 "Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody(2008. 12. 11), p.xxvii"

36 "Rasul v. Bush, 542 U.S. 466"

37 "Presidential Memorandum(2009. 12. 15)"

38 "Order Establishing Combatant Status Review Tribunals"

39 James G. Vanzant, "No Crime Without Law: War Crimes, Material Support for Terrorism, and the Ex Post Facto Principle" 59 : 1053-, 2010

40 "Military Order of November 13, 2001-Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"

41 "Military Commissions Act of 2006, 10 U.S.C. 948a"

42 "Lease to the United States by the Government of Cuba of Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda"

43 "Johnson v. Eisentrager, 339 U.S. 763"

44 Jose Alvarez, "International Organizations: Then and Now" 100 (100): 2006

45 "Humane Treatment of al Qaeda and Taliban Detainees"

46 Louis Henkin, "How Nations Behave" Columbia University Press 47-, 1979

47 "Hamdan v. Rumsfeld, supra note 47"

48 "Hamdan v. Rumsfeld, 548 U.S. 557"

49 Joseph C. Sweeney, "Guantanamo and U.S. Law" 30 (30): 674-679, 2007

50 "Guantanamo Inmates See Trial Freeze End"

51 Johan Steyn, "Guantanamo Bay: The Legal Black Hole"

52 "Executive Order No. 13492(Review and Disposition of Individuals Detained at the Guantanamo bay Naval Base and Closure of Detention Facilities)"

53 "Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739"

54 "Department of Justice Withdraws Enemy Combatant’ Definition for Guantanamo Detainees"

55 Jennifer K. Elsea, "Congressional Research Service Report for Congress: Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court"

56 Greg Bruno, "Closing Guantanamo"

57 "Boumediene v. Bush, supra note 47"

58 "Boumediene v. Bush, 128 S. Ct. 2229"

59 Gregory S. McNeal, "Beyond Guantanamo, Obstacles and Options" 103 : 31-41, 2008

60 "Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations"

61 "2009년 11월 13일 미 법무부 보도자료"