Robert Delahunty

Robert J. Delahunty is a law professor at the University of St. Thomas School of Law in Minneapolis, Minnesota.^[1] From 1989 to 2003, he worked in the United States Department of Justice Office of Legal Counsel. During his tenure there, he cowrote 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.^[2] 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.^[3]

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.".^[4][5] 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.^[6] 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 R. 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.^[7][8]

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.^[9][10] 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".^[5]

Delahunty co-authored other related legal opinions which the government has so far refused to release:^[4]

• 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, 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,^[11][12][13] though such criticism was less visible on campus than in places where Yoo taught.^{[14] [15][16]}

See also

• Extraordinary rendition by the United States
• John Yoo
• Torture memos

References