342:. The theory was constructed by the professors drafting the Lexington Principles as a means of offering modern judges a jurisprudential concept that could afford them the opportunity to recognize a host of modern human rights that have developed in legal systems around the world since the American Bill of Rights was ratified in 1791. This conceptual mechanism for transnational norm internalization, if adopted by the U.S. Supreme Court, would give progressive American judges the opportunity to protect individual liberty by incorporating into the Fifth Amendment's Due Process Clause a variety of new and emerging human rights protections that pertain to modern American life in the Information Age. Liberty rights associated with privacy and personal autonomy in cyberspace were inconceivable in 1791 during the drafting of the original Bill of Rights. The Transnational Incorporation Doctrine would provide a way for courts to modernize the rights all American citizens enjoy vis-a-vis their government without the need to amend the Constitution through the cumbersome process prescribed in Article V. The formal amendment process makes meaningful change practically impossible to achieve, which is why the Lexington Principles Project crafted this new mechanism to facilitate bringing Americans rights up to the highest transnational standards.
304:
transnational norms discovered during the lengthy research phase of the
Lexington Principles Project needed to be translated into aspects of due process. This was accomplished by distilling all points of mutuality in the law governing detainee treatment under both international law and domestic U.S. law down to one central right: the right to physical liberty. Principle 1 of the Lexington Principles on the Rights of Detainees codified this right, and all other rights were drafted as essentially derivative of this central guarantee.
351:
States
Constitution both at home and abroad, with limited exceptions. Persons who are not American citizens or permanent residents are afforded no protection under the U.S. Constitution outside of U.S. borders and substantially diminished rights while on U.S. soil. The Transnational Incorporation Doctrine, if adopted, would change the American understanding of Constitutional rights making them "human" rights rather than rights tied to nationality or territorial location.
177:"(t)he United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict. That article was specifically designed for those cases in which the usual laws of war did not apply. Its minimum standards are generally accepted throughout the world as customary international law.".
568:
disclosure of the evidence underlying the factual basis for the detention would result in a substantial risk of harm to individuals or national security, the detainee may be informed of the general nature of the States justification for the detention sufficient to allow the detainee to communicate relevant information to the detaining authorities which might assist them in determining whether continued detention is justified.
143:"The mission of the Lexington Principles Project is to engage the international community to clarify and strengthen transnational norms pertaining to due process of law and the treatment of persons detained on suspicion of terrorist activities, and to foster a common approach to these matters, in keeping with the recommendation of the 9/11 Commission on this subject.".
201:"The U.S. has not engaged in a common coalition approach to developing standards for detention and prosecution of captured terrorists. Indeed, U.S. treatment of detainees has elicited broad criticism, and makes it harder to build the necessary alliances to cooperate effectively with partners in a global war on terror.".
790:
All persons deprived of their liberty for an extended time should be given regular access to periodicals, books, educational materials, audio programs, writing materials, and other such items intended to keep them mentally engaged, informed of world events, and to allow them to make productive use of
763:
All persons who are refugees, stateless persons, or nationals of States without diplomatic or consular representation in the detaining State should be allowed reasonable opportunities to communicate with the diplomatic and consular representatives of the State which takes charge of their interests or
750:
Persons subjected to prolonged detention should be allowed to communicate with their family at regular intervals, subject to the supervision of the detaining authorities, unless the State demonstrates that the denial of such communication is necessary based on a demonstrable risk to national security
567:
The required notice should be sufficient to inform the person of the laws authorizing the impairment and the nature of the evidence justifying its use in the specific case, described with sufficient particularity to allow the person to evaluate the factual and legal basis for the deprivation. If full
100:
were completed and published on April 1, 2009. The instrument consists of 45 principles and countless annotations prepared by the project's law student editorial board. A primary purpose of the drafters of the
Lexington Principles was to assist the jurisprudential evolution of American constitutional
759:
All persons deprived of their liberty by the government of a foreign State should be allowed reasonable opportunities to communicate with the diplomatic or consular representatives of their home State as soon as practicable after the deprivation and periodically throughout the period of detention as
303:
The term "due process" is unique to common law legal systems, and is not generally found in the text of international human rights and humanitarian law treaties. Due process is a powerful concept at common law, so it was important for the
Lexington Principles to be phrased in those terms. All of the
781:
Physicians charged with providing medical care for persons deprived of their liberty should be afforded a mechanism for disclosure of suspected detainee abuse to an authority outside the control of the entity committing the abuse, under conditions affording the physician adequate protection against
528:
Procedural due process is a human right requiring that all persons be afforded notice of, and an opportunity to challenge, any State action substantially affecting their fundamental right to physical liberty in a fair and public hearing before an impartial adjudicator with the independent authority
482:
Transfer of a Person to the custody of another State does not terminate the transferring States responsibility to protect the rights of the transferee. The transferring State should maintain an active interest in the rights of the transferee and seek periodic assurances that due process rights are
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A State employing physical interrogation methods on any person should be required to maintain records detailing the specific dates, times, and duration of each physical interrogation session and specifying all of the physical methods employed together with the written legal authorization approving
388:
These new transnational rights likely would not be nearly as extensive as those offered to U.S. citizens in the United States, but at a minimum they would ensure that the most fundamental due process rights are always afforded in all instances where a human being is detained by the U.S. government
283:
The
Transnational Legal Process approach required the group to focus on vertical process throughout all stages of norm definition. The result was the creation of an innovative conceptual framework based on the familiar common law due process paradigm. Accordingly, the bulk of detainee rights under
808:
No State should unduly restrict the ability of the
International Committee of the Red Cross and other appropriate relief organizations to inspect detention facilities and to engage in unmonitored communication with individual detainees for the purpose of monitoring the States compliance with its
799:
A detaining State should make the general procedures governing the operation of its detention facilities available to the public. Sensitive security information may be exempted from public disclosure, although such procedures should be subject to review through an independent mechanism within the
443:
The fundamental protections inherent in the right to due process of law are universal and should be afforded to all persons detained by a State or its agents without regard to nationality, national origin, ethnic origin, race, color, descent, language, religion, faith, sex, age, birth, parentage,
350:
A significant ancillary consequence of the novel and still unadopted
Transnational Incorporation Doctrine would be its effect on the rights afforded to non-United States persons under U.S. law. Presently, United States citizens and permanent residents are afforded full protection under the United
1331:
720:
Extrajudicial detention beyond the time necessary to serve a compelling and current state objective is inconsistent with the principles of due process. No State should detain any person outside the judicial process unless such detention is conducted in accordance with substantial procedural
238:
The
Lexington Principles Project's participants did not want simply to restate existing international norms. Many groups had already aptly performed that function and such an effort would have been redundant, and possibly even counterproductive to developing a universal approach to detainee
216:
sought to assist the process of implementing the 9/11 Commission's recommendation by initiating a scholarly dialogue between military practitioners and legal experts aimed at identifying the high end of prevailing transnational norms pertaining to detainee treatment. They created
193:
Seventeen months later the 9/11 Commission met again to grade the government's progress on implementing each of the 41 recommendations detailed in its Report. The
Commission gave an "F" to the commission's recommendation regarding "Coalition Standards for Terrorist Detention.".
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All persons subjected to prolonged deprivations of liberty should be afforded the right to periodic unmonitored communications with the physicians charged with providing their medical care in order to allow the disclosure of allegations of abuse by the detaining authorities.
670:
No person should be deprived of the right to physical liberty except pursuant to the rule of law. State actors should never deprive any person of physical liberty except pursuant to specific and demonstrable legal authority governed by written laws and procedures.
558:
When a State substantially impairs the right to physical liberty of any person it should provide that person with effective written notice of the reasons for the impairment and the procedural mechanisms through which the person may challenge the deprivation.
1073:(2005): Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by 17 countries and signed but not yet ratified by an additional 68 countries.
425:
The fundamental protections inherent in the right to due process of law are universal and apply in all situations where a person has been detained by a State or its agents regardless of the reasons for, or circumstances surrounding, the detention.
189:"The United States has worked closely with its coalition partners regarding the detention and treatment of captured terrorists, and is open to exploring whether a "common coalition approach" is feasible and consistent with our national security.".
581:
All persons should have the right to challenge any substantial State deprivations of their right to physical liberty before a fair and impartial decision maker with the authority to remedy undue infringements without unnecessary delay.
647:
Implicit in the fundamental right to due process of law is the requirement that no State should deprive any person of life, liberty, or security of person in violation of any right fundamental to accepted principles of global justice.
496:
A State's compliance with its responsibility to protect the fundamental rights of persons it deprives of physical liberty is a concern of humankind and therefore should be of interest to all members of the international community.
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856:
All persons deprived of their liberty should be afforded adequate healthcare, nutrition, and opportunities for physical exercise necessary for the maintenance of both physical and mental fitness during the period of detention.
661:
No State should arrest or detain any person for reasons that are arbitrary. An arrest or detention is arbitrary if it is not performed pursuant to law or if it is incompatible with the fundamental principles of global justice.
370:
could result in universal application of all incorporated rights regardless of nationality or physical location. With respect to these newly domesticated transnational rights, former barriers to rights recognition based on
324:, first developed for the Lexington Principles, asserts that there are some principles of international law that are so fundamental to accepted global standards of justice that they should be implied as part the right to
457:
Each State has the responsibility to protect the right to physical liberty for all persons within its territory or otherwise under its control except insofar as they are properly detained in accordance with
Principle 1.
687:
No State should detain any person based solely on that persons nationality, national origin, ethnic origin, race, color, descent, language, religion, faith, sex, age, birth, parentage, wealth, or any similar criteria.
239:
treatment. The Lexington Principles Project therefore aimed to develop a progressive set of principles recognizing the highest standards set forth in international law and the domestic legal systems of foreign nations.
1067:(1977): Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of January 12, 2007, it had been ratified by 163 countries.
628:
Adjudicators should have the means to report their concerns regarding suspected rights violations to appropriate authorities outside of the control of the governmental entity suspected of committing the violations.
434:
The fundamental protections inherent in the right to due process of law are universal and should be afforded to all persons detained by a State or its agents without regard to the location of capture or detention.
1061:(1977): Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts. As of January 12, 2007, it had been ratified by 167 countries.
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No State should subject any person to torture, cruel treatment, biological experiments, murder, mutilation, maiming, rape, sexual abuse, or the intentional infliction of serious bodily or psychological injury.
606:
All persons should be afforded the opportunity to consult legal counsel before and during legal proceedings adjudicating matters pertaining to substantial deprivations of their right to physical liberty.
865:
All persons deprived of their liberty should be afforded reasonable accommodations necessary to permit religious observance in accordance with the tenets of their faith or dictates of their conscience.
168:
on the terrorist attacks of September 11, 2001. In this report, the commission made numerous recommendations to U.S. government officials on how to better defend the United States against the spread of
537:
Due process requires that no deprivation of liberty occur outside of a legal process designed and equipped to assess the legality of the deprivation before, after, and during the period of detention.
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All persons charged with a criminal offense should be presumed innocent until proven guilty through an adjudicative process conducted in accordance with the requirements of due process.
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would no longer affect applicability. Any rights incorporated through the Transnational Incorporation Doctrine would likely have to be universally afforded to all human beings by the
1085:
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To overcome the difficulties inherent in applying international law in domestic courts, the Lexington Principles Project structured its efforts in accordance with the theory of
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Decision makers charged with adjudicating matters affecting a person's fundamental rights should be impartial and adequately educated to properly perform that function.
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No State should subject any person to nonconsensual transfer from one national jurisdiction to another unless such transfer is performed pursuant to judicial process.
474:
Once initiated, a State's responsibility to protect the due process rights of a person continues until that individuals physical liberty is ultimately restored.
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All persons should be afforded the opportunity to participate in legal proceedings adjudicating matters directly affecting their right to physical liberty.
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No State should try any person for a penal offense based on acts or omissions which did not constitute a penal offense at the time they were committed.
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All persons should be afforded the right to return to their country of nationality or citizenship upon the cessation of detention by a foreign State.
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Prolonged incommunicado detention is incompatible with the substantive liberty guarantees inherent in the fundamental right to due process of law.
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safeguards narrowly tailored to ensure the detention is strictly limited to the time necessary to serve a compelling and current state objective.
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All persons subjected to physical interrogation methods by a State should be given full access to the records pertaining to such interrogations.
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on September 25, 2008. These draft principles were approved and published in final form on April 1, 2009, along with student-edited annotations.
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At a minimum, a State's responsibility to protect the due process rights of a person begins at the moment the person is detained by its agents.
989:
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To explain its issuance of a failing grade with respect to the government's compliance with this recommendation, the Commission stated that:
364:. Because international human rights are universal, the Transnational Incorporation Doctrine's new interpretation of the Fifth Amendment's
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their use. Such records should be maintained for a period of fifty years, and destruction of such records should be a criminal offense.
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No State should detain, try, or punish any person for an offence for which the person has already been finally convicted or acquitted.
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needed to ensure they are afforded the full benefits of the protections guaranteed to foreign nationals under international law.
45:
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Text, Audio, and Video excerpt of Eleanor Roosevelt's Address to the United Nations on the Universal Declaration of Human Rights
263:. The Project's use of this approach was facilitated by the availability of the considerable transnational law resources of the
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The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, Ch 12 p 380
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commons:File:The Lexington Principles on the Rights of Detainees.pdf/ The Lexington Principles on the Rights of Detainees
1172:"The Lexington Principles on the Rights of Detainees :: The Lexington Principles Project :: W&L Law School"
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states, "Physical liberty is a fundamental human right and may not be denied to any person without due process of law.".
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These Principles should not be construed to diminish any human right or protection afforded by any other source of law.
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117:, all provisions have been drafted to facilitate vertical norm internalization into the domestic legal system of the
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No State should deprive any person of liberty based solely on the alleged or actual wrongdoing of a third party.
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Physical liberty is a fundamental human right and may not be denied to any person without due process of law.
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1297:"Principle 1, The Lexington Principles on the Rights of Detainees (Draft Principles, September 25, 2008)"
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1031:"for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea"
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No State should detain any person based solely on that persons exercise of a fundamental human right.
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No State should interrogate any person employing methods that have not been approved for use by law.
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principles that reflect the prevailing transnational norms in the area of detainee treatment. The
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and began the lengthy process of research and analysis that culminated in the publication of the
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Website dedicated to providing free legal education on topics related to U.S. intelligence law.
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1225:"White House Press Release, Bush Administration Actions Consistent with 9/11 Recommendations"
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1022:"for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field"
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NPR Interview Promo, With Good Reason, Torture and the Lexington Principles Show Promo
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25. Principle 25: Prohibition of Detention Based on the Exercise of Fundamental Rights
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continuously afforded until the transferees physical liberty is ultimately restored.
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39. Principle 39: Rights of Relief Organizations to Inspect Prisoners and Facilities
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29. Principle 29: Prohibition of Deprivations Based on the Actions of Third Parties
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any national or international authority whose task it is to protect such persons.
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34. Principle 34: Right to Communicate with Diplomatic or Consular Representatives
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responsibility to protect the fundamental rights of detainees under its control.
173:. In reference to detainee treatment standards, the Commission recommended that:
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responded to the 9-11 Commission's recommendation with the following statement:
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D. Section D: Prohibition of Offenses to Personal Welfare and Human Dignity
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36. Principle 36: Right of Physicians to Report Suspected Rights Violations
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to remedy violations through direct action and without undue restrictions.
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Support for this result comes from the emerging transnational trend toward
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NPR Show, With Good Reason, Torture and the Lexington Principles Full Show
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Convention on the Elimination of All Forms of Discrimination Against Women
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A. Section A: Fundamental Right to Physical Liberty and Due Process of Law
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26. Principle 26: Prohibition of Detention Based on Discriminatory Animus
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14. Principle 14: Notice of Reasons for Deprivation and Procedural Rights
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Codifying the Gold Standard in Transnational Detainee Treatment Standards
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17. Principle 17: Right to Presumption of Innocence in Criminal Hearings
1055:(first adopted in 1949, based on parts of the 1907 Hague Convention IV)
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44. Principle 44: Right to Adequate Healthcare, Nutrition, and Exercise
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43. Principle 43: Right of Access to Records of Physical Interrogations
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27. Principle 27: Prohibition of Ex Post Facto Application of Penal Law
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B. Section B: Prohibition of Arbitrary Deprivations of Physical Liberty
1247:"Final Report on 9/11 Commission Recommendations, 1-Page Grade Sheet"
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42. Principle 42: Duty to Maintain Records of Physical Interrogations
336:. This is a new progressive theory that has yet to be adopted by the
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35. Principle 35: Right to Unmonitored Communication with Physicians
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5. Principle 5: General Statement of State Responsibility to Protect
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Convention on the Elimination of All Forms of Racial Discrimination
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The Lexington Principles on the Rights of Detainees (April 1, 2009)
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41. Principle 41: Prohibition of Extra-Legal Interrogation Methods
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30. Principle 30: Prohibition of Indefinite Non-Punitive Detention
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21. Principle 21: Right of Adjudicators to Report Suspected Abuses
1033:(first adopted in 1949, successor of the 1907 Hague Convention X)
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12. Principle 12: Prohibition of Extralegal Arrest and Detention
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1. Principle 1: Right to Physical Liberty and Due Process of Law
1053:"relative to the Protection of Civilian Persons in Time of War"
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38. Principle 38: Right of Public Access to Facility Procedures
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23. Principle 23: Prohibition of Arbitrary Arrest and Detention
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6. Principle 6: Commencement of State Responsibility to Protect
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1147:, first 1918, but did not guarantee rights to the middle class
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37. Principle 37: Right to Information about the Outside World
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16. Principle 16: Right to Challenge Substantial Deprivations
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8. Principle 8: State Responsibility to Protect upon Transfer
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2. Principle 2: General Statement of Universal Applicability
284:
international law are categorized into one of three groups:
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31. Principle 31: Right to Repatriation Following Detention
470:
7. Principle 7: Duration of State Responsibility to Protect
1272:"Final Report on 9/11 Commission Recommendations, Page 7"
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32. Principle 32: Prohibition of Incommunicado Detention
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20. Principle 20: Composition of Adjudicative Mechanism
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18. Principle 18: Right to Participate in Legal Process
1194:"The Lexington Principles Website, Mission Statement"
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Standard Minimum Rules for the Treatment of Prisoners
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33. Principle 33: Right to Communicate with Relatives
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A. Section A: General Statement of Substantive Rights
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13. Principle 13: Prohibition of Extralegal Rendition
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Draft Lexington Principles on the Rights of Detainees
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International Covenant on Civil and Political Rights
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C. Section C: Prohibition of Incommunicado Detention
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A. Section A: General Statement of Procedural Rights
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Declaration of the Rights of Man and of the Citizen
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Charter of Fundamental Rights of the European Union
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The Lexington Principles on the Rights of Detainees
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33:
25:
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The Lexington Principles on the Rights of Detainees
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643:22. Principle 22: Right to Substantive Due Process
524:11. Principle 11: Right to Procedural Due Process
700:28. Principle 28: Prohibition of Double Jeopardy
1040:"relative to the Treatment of Prisoners of War"
861:45. Principle 45: Right to Religious Observance
818:40. Principle 40: Prohibition of Grave Breaches
611:D. Section D: Fair and Impartial Decision Maker
1024:(first adopted in 1864, last revision in 1949)
492:9. Principle 9: Statement of Universal Concern
8:
346:Moving Beyond Nationality and Territoriality
272:Washington and Lee University School of Law
138:Mission of the Lexington Principles Project
54:Washington and Lee University School of Law
666:24. Principle 24: Right to the Rule of Law
978:United Nations Convention Against Torture
501:E. Section E: Relationship to Other Laws
430:3. Principle 3: Irrelevance of Geography
333:Fifth Amendment to the U.S. Constitution
1163:
1151:Canadian Charter of Rights and Freedoms
563:15. Principle 15: Sufficiency of Notice
506:10. Principle 10: Rules of Construction
633:III. Part III: Substantive Due Process
487:D. Section D: International Obligation
389:for any reason anywhere in the world.
17:
1135:, completed in 1789, approved in 1791
990:Convention on the Rights of the Child
954:Universal Declaration of Human Rights
572:C. Section C: Opportunity to be Heard
7:
1080:Codifications of International Norms
444:wealth, or any other such criteria.
321:Transnational Incorporation Doctrine
314:Transnational Incorporation Doctrine
243:Transnational Legal Process Approach
960:European Convention on Human Rights
514:II. Part II: Procedural Due Process
111:. While each Principle is based on
602:19. Principle 19: Right to Counsel
448:C. Section C: State Responsibility
416:B. Section B: Scope of Application
37:Lexington, Virginia, United States
14:
439:4. Principle 4: Nondiscrimination
210:Several professors and alumni at
1327:The Lexington Principles Project
1145:Constitution of the Soviet Union
219:The Lexington Principles Project
101:due process standards after the
46:The Lexington Principles Project
1277:. 9-11pdp.org. December 5, 2005
1252:. 9-11pdp.org. December 5, 2005
791:their time while in detention.
1127:Virginia Declaration of Rights
1003:International Humanitarian Law
948:International Human Rights Law
920:Incorporation (Bill of Rights)
362:international human rights law
1:
751:or the safety of any person.
398:I. Part I: General Provisions
213:Washington and Lee University
206:Washington and Lee University
90:) is a body of international
1321:Lexington Principles Project
1174:. Law.wlu.edu. April 1, 2009
1133:United States Bill of Rights
339:United States Supreme Court
266:Transnational Law Institute
249:Transnational Legal Process
50:Transnational Law Institute
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1093:National Human Rights Law
1050:Fourth Geneva Convention
1046:, last revision in 1949)
1028:Second Geneva Convention
1121:Scottish Claim of Right
1037:Third Geneva Convention
1019:First Geneva Convention
937:History of human rights
294:Substantive Due Process
171:international terrorism
1117:English Bill of Rights
898:9/11 Commission Report
800:detaining government.
291:Procedural Due Process
203:
191:
179:
158:On July 22, 2004, the
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1355:Multimedia references
1342:U.S. Intelligence Law
1044:first adopted in 1929
875:U.S. Intelligence Law
299:Normative Translation
199:
187:
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1158:Notes and references
549:B. Section B: Notice
279:Due Process Paradigm
98:Lexington Principles
88:Lexington Principles
1348:IntelligenceLaw.com
887:The 9/11 Commission
148:The 9/11 Commission
58:Institute for Honor
1014:Geneva Conventions
367:Due Process Clause
327:due process of law
288:General Provisions
108:Boumediene v. Bush
103:U.S. Supreme Court
1386:International law
1009:Hague Conventions
254:Harold Hongju Koh
114:international law
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68:Detainee rights
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1391:Human rights
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1198:. Retrieved
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1071:Protocol III
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942:Human rights
931:Human Rights
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1281:October 16,
1256:October 16,
1231:October 16,
1200:October 16,
1178:October 16,
1129:, June 1776
1111:Golden Bull
1105:Magna Carta
1065:Protocol II
915:Due process
904:Due Process
373:nationality
308:Principle 1
229:Methodology
183:White House
164:issued its
129:countries.
93:due process
72:Due process
1380:Categories
1059:Protocol I
330:under the
126:common law
123:and other
42:Author(s)
910:Detainee
870:See also
34:Location
133:History
64:Purpose
26:Created
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1123:, 1689
1088:, 1977
998:, 2000
992:, 1990
986:, 1981
980:, 1987
974:, 1976
968:, 1969
962:, 1950
956:, 1948
166:report
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1305:2012
1283:2012
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1119:and
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