Robert Delahunty
Encyclopedia
Robert J. Delahunty is a law professor at the University of St. Thomas School of Law
in Minneapolis, Minnesota. From 1989 through
2003, he worked in the United States Department of Justice
Office of Legal Counsel
. During his tenure there, he co-wrote several legal opinions with John Yoo
relating to interrogation, detention, and rendition of terror suspects.
Key elements of the October 23, 2001 memorandum, including conclusions that the Fourth Amendment does not apply to domestic military operations against foreign terrorists and that First Amendment speech and press rights may be subordinated to successful prosecution of war, were deemed "not authoritative for any purpose" by the Office of Legal Counsel in 2008. In 2009, the OLC also repudiated as overbroad the November 15, 2001 memorandum's assertion that Presidents have the inherent authority to suspend any provision of a treaty at any time, without notice to either Congress or our treaty partners.
Delahunty and Yoo's January 9, 2002 draft Memorandum to William J. Haynes, II
, General Counsel of the Department of Defense, "Application of Treaties and Laws to al Qaeda and Taliban Detainees" claims that al Qaeda and Taliban members are "not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs.". This memo promptly led on January 19, 2002 to a secret order from Secretary of Defense Donald Rumsfeld
to his combat commanders, repeating its conclusions, and specifically ordering that the order be transmitted to "Joint Task Force 160", which at the time was setting up the new detaineee prison at Guantanamo.
The Supreme Court
rejected this legal reasoning on June 29, 2006 in Hamdan v. Rumsfeld
, which stated, "The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply[...]. [T]here is at least one provision of the Geneva Conventions that applies here[...]. Common Article 3 [...] is applicable here and [...] requires that Hamdan be tried by a 'regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.'" On July 7, 2006, Gordon England of the Defense Department ordered that Common article 3 of the Geneva Convention – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.
Some prominent lawyers and ethicists have argued that the authors of this memo bear responsibility for the results of the U.S. Government's application of its legal conclusion in the field. Judge White identified multiple precedents for holding lawyers liable for "the foreseeable consequences of their conduct" in Jose Padilla
's lawsuit against Delahunty's colleague Yoo for the imprisonment and torture of Padilla. White summarized one such case as "holding that a lawyer may be held liable for substantially assisting in the violation of the law by issuing advice in violation of the law".
Delahunty co-authored other related legal opinions which the government has so far refused to release:
Delahunty attended Columbia University
, the University of Oxford
, and Harvard Law School
. He has taught at Oriel College, Oxford, the University of Durham, Catholic University, and the University of St. Thomas. He served as Deputy General Counsel at the White House Office of Homeland Security in 2002 and 2003. His presence on the University of St. Thomas and University of Minnesota campuses has met with persistent criticism from area human rights groups due to his role in producing the controversial memos, though such criticism was less visible on campus than in places where Yoo taught.
University of St. Thomas School of Law
The University of St. Thomas School of Law is one of the professional graduate schools of the University of St. Thomas and is one of four law schools in the Twin Cities. It currently enrolls 457 students.-History:...
in Minneapolis, Minnesota. From 1989 through
2003, he worked in the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
Office of Legal Counsel
Office of Legal Counsel
The Office of Legal Counsel is an office in the United States Department of Justice that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.-History:...
. During his tenure there, he co-wrote several legal opinions with John Yoo
John Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
relating to interrogation, detention, and rendition of terror suspects.
Key elements of the October 23, 2001 memorandum, including conclusions that the Fourth Amendment does not apply to domestic military operations against foreign terrorists and that First Amendment speech and press rights may be subordinated to successful prosecution of war, were deemed "not authoritative for any purpose" by the Office of Legal Counsel in 2008. In 2009, the OLC also repudiated as overbroad the November 15, 2001 memorandum's assertion that Presidents have the inherent authority to suspend any provision of a treaty at any time, without notice to either Congress or our treaty partners.
Delahunty and Yoo's January 9, 2002 draft Memorandum to William J. Haynes, II
William J. Haynes, II
William James "Jim" Haynes II is an American lawyer and former General Counsel of the Department of Defense during President George W. Bush's administration. Haynes resigned as General Counsel effective March 2008...
, General Counsel of the Department of Defense, "Application of Treaties and Laws to al Qaeda and Taliban Detainees" claims that al Qaeda and Taliban members are "not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs.". This memo promptly led on January 19, 2002 to a secret order from Secretary of Defense Donald Rumsfeld
Donald Rumsfeld
Donald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
to his combat commanders, repeating its conclusions, and specifically ordering that the order be transmitted to "Joint Task Force 160", which at the time was setting up the new detaineee prison at Guantanamo.
The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
rejected this legal reasoning on June 29, 2006 in Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
, which stated, "The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply[...]. [T]here is at least one provision of the Geneva Conventions that applies here[...]. Common Article 3 [...] is applicable here and [...] requires that Hamdan be tried by a 'regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.'" On July 7, 2006, Gordon England of the Defense Department ordered that Common article 3 of the Geneva Convention – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.
Some prominent lawyers and ethicists have argued that the authors of this memo bear responsibility for the results of the U.S. Government's application of its legal conclusion in the field. Judge White identified multiple precedents for holding lawyers liable for "the foreseeable consequences of their conduct" in Jose Padilla
José Padilla
José Padilla is the name of:* José Gualberto Padilla , Puerto Rican poet, politician and advocate of Puerto Rican indepedence.* José Prudencio Padilla , Colombian military leader...
's lawsuit against Delahunty's colleague Yoo for the imprisonment and torture of Padilla. White summarized one such case as "holding that a lawyer may be held liable for substantially assisting in the violation of the law by issuing advice in violation of the law".
Delahunty co-authored other related legal opinions which the government has so far refused to release:
- November 20, 2001: "War Crimes Act, Hague Convention, Geneva Conventions, federal criminal code, and detainee treatment"
- January 11, 2002: "Geneva Conventions"
- January 14, 2002: "Prosecution for Conduct Against al Qaeda and Taliban Members under the War Crimes Act"
- November 18, 2003: "Legal advice provided to DOD re: application of Geneva Conventions"
Delahunty attended Columbia University
Columbia University
Columbia University in the City of New York is a private, Ivy League university in Manhattan, New York City. Columbia is the oldest institution of higher learning in the state of New York, the fifth oldest in the United States, and one of the country's nine Colonial Colleges founded before the...
, the University of Oxford
University of Oxford
The University of Oxford is a university located in Oxford, United Kingdom. It is the second-oldest surviving university in the world and the oldest in the English-speaking world. Although its exact date of foundation is unclear, there is evidence of teaching as far back as 1096...
, and Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
. He has taught at Oriel College, Oxford, the University of Durham, Catholic University, and the University of St. Thomas. He served as Deputy General Counsel at the White House Office of Homeland Security in 2002 and 2003. His presence on the University of St. Thomas and University of Minnesota campuses has met with persistent criticism from area human rights groups due to his role in producing the controversial memos, though such criticism was less visible on campus than in places where Yoo taught.