Robert Delahunty
Nationality USA
Occupation Professor
Known for Former official in the United States Department of Justice

Robert J. Delahunty is a law professor at the University of St. Thomas School of Law in Minneapolis, Minnesota.[1] 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.[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 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[edit | edit source]

References[edit | edit source]

  1. "Robert Delahunty's home page". Retrieved June 16, 2009. 
  2. "Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities" (PDF). US Department of Justice Office of Legal Counsel. 2008-10-06. Retrieved 2009-08-10. 
  3. "Memorandum regarding status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Acts of September 11, 2001" (PDF). US Department of Justice Office of Legal Counsel. 2009-01-15. Retrieved 2009-08-10. 
  4. 4.0 4.1 American Civil Liberties Union (2009-04-22). "Index of Bush-Era OLC Memoranda Relating to Interrogation, Detention, Rendition and/or Surveillance". Retrieved 2009-08-10. 
  5. 5.0 5.1 Judge Jeffrey S. White (2009-06-12). "Order Denying in Part and Granting in Part Defendant's Motion to Dismiss (Document #68 in José Padilla and Estela Lebron v. John Yoo, case No. C 08-00035 JSW)". Retrieved 2009-06-16. 
  6. Karen J. Greenberg (January 25, 2009). "When Gitmo Was (Relatively) Good". The Washington Post. Retrieved October 12, 2009. 
  7. Demetri Sevastopulo and Holly Yeager (July 11, 2006; Last updated July 12, 2006). "Pentagon to Give Rights to Detainees". Financial Times. Retrieved 2009-10-13. 
  8. Gordon England (July 7, 2006). "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense". Office of the Secretary of Defense. Retrieved 2009-10-13. 
  9. Dr. Steven H. Miles (Sept. 1, 2009). "The Robert Delahunty torture-memo controversy at St. Thomas". Retrieved 2009-09-20. 
  10. "DOJ attorneys who advised the White House on military prisoner policy bear responsibility for the abuse scandals." Stephen Gillers (June 14, 2004). "Tortured Reasoning". The American Lawyer. Retrieved 2009-09-20. 
  11. "Prof's memo controversial". The Aquin (weekly campus newspaper). September 17, 2004. 
  12. "Law professor teaches despite criticism". The Aquin (weekly campus newspaper). February 9, 2007. 
  13. Roger Cuthbertson (August 26, 2009). "St. Thomas Law Professor Robert Delahunty's "Torture Memos"". Twin Cities Daily Planet (citizen journalism website). Retrieved 2009-09-20. 
  14. "Protesters want UC Berkeley law professor fired". Associated Press. August 17, 2009. 
  15. "New hire controversial". Minnesota Daily (campus newspaper). November 28, 2006. 
  16. "Editorial: Ethics should trump credentials in hiring". The Aquin (weekly campus newspaper). December 6, 2006. 
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