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Habeas Corpus after 9/11

Habeas Corpus after 9/11: Confronting Americas New Global Detention System

Jonathan Hafetz
Copyright Date: 2011
Published by: NYU Press
Pages: 331
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  • Book Info
    Habeas Corpus after 9/11
    Book Description:

    The U.S. detention center at Guantanamo Bay has long been synonymous with torture, secrecy, and the abuse of executive power. It has come to epitomize lawlessness and has sparked protracted legal battles and political debate. For too long, however, Guantanamo has been viewed in isolation and has overshadowed a larger, interconnected global detention system that includes other military prisons such as Bagram Air Base in Afghanistan, secret CIA jails, and the transfer of prisoners to other countries for torture. Guantanamo is simply - and alarmingly - the most visible example of a much larger prison system designed to operate outside the law.Habeas Corpus after 9/11 examines the rise of the U.S.-run global detention system that emerged after 9/11 and the efforts to challenge it through habeas corpus (a petition to appear in court to claim unlawful imprisonment). Habeas expert and litigator Jonathan Hafetz gives us an insider's view of the detention of enemy combatants and an accessible explanation of the complex forces that keep these systems running. In the age of terrorism, some argue that habeas corpus is impractical and unwise. Hafetz advocates that it remains the single most important check against arbitrary and unlawful detention, torture, and the abuse of executive power.

    eISBN: 978-0-8147-9079-3
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. 1-8)

    The U.S. detention center at the Guantánamo Bay Naval Base in Cuba has long been synonymous with torture, secrecy, and the abuse of executive power. It has come to epitomize lawlessness in the eyes of the world. Created in the name of protecting the country, Guantánamo has weakened it, undermining America’s security as well as well as its values.

    For too long, however, Guantánamo has been viewed in isolation, overshadowing other abuses and concealing broader shifts in America’s national security policy since September 11, 2001. Guantánamo was never simply a prison, nor was it hermetically sealed. Rather, Guantánamo was part...

  5. PART 1

    • 1 Laying the Foundation for the “War on Terror”
      (pp. 11-30)

      On the morning of September 11, 2001, the United States suffered the most devastating attacks on American soil in the nation’s history. Nineteen men hijacked four commercial jet airliners and attempted to fly them into several U.S. targets. Two planes crashed into New York City’s World Trade Center, destroying both towers. A third plane hit the Pentagon. The fourth plane was diverted by the passengers and crashed in a field in Pennsylvania. Nearly three thousand people died in the attacks, and the United States suffered untold trauma and billions of dollars in damages. Within days, responsibility had been attributed to...

    • 2 Guantánamo: Microcosm of a Prison beyond the Law
      (pp. 31-45)

      On January 11, 2002, the first twenty prisoners arrived at Guantánamo after twenty-seven hours on an air force cargo plane that had departed the previous day from the U.S. Marine Corps base in Kandahar, Afghanistan. The prisoners were hooded, wore orange jumpsuits, and were shackled at the arms and legs. They had been chained to their seats during the flight and were given only urinal spittoons to relieve themselves. At least one prisoner was forcibly sedated. More flights into Guantánamo followed, transporting prisoners with surgical masks over their faces, black-out goggles over their eyes, and a “three-piece suit” restraint that...

    • 3 Guantánamo beyond Guantánamo: Toward a Global Detention System
      (pp. 46-67)

      On April 10, 2002, Binyam Mohamed was arrested while boarding a flight to Zurich from Karachi Airport in Pakistan. Born in Ethiopia in 1978, Mohamed had been residing in London, England, before traveling to Afghanistan in the spring of 2001. Mohamed says he went to Afghanistan to escape the London street culture and to experience living in a Muslim country. The U.S. government had a different story: that Mohamed received weapons training at an al Qaeda camp in the summer of 2001 and additional training in bomb making before he and American citizen Jose Padilla were tapped by al Qaeda’s...

    • 4 Crossing a Constitutional Rubicon: The Domestic “Enemy Combatant” Cases
      (pp. 68-78)

      After 9/11, the United States imprisoned hundreds of individuals as “enemy combatants” overseas and only three people as “enemy combatants” inside the United States. But those three cases involved the most aggressive and expansive assertions of executive detention power in the “war on terrorism.” In two of them, the Bush administration sought nothing less than the crossing of a constitutional Rubicon, threatening to erase the guarantees of the Bill of Rights and institute a new norm of indefinite military imprisonment. In essence, it claimed the power to seize American citizens and legal residents off the streets of the United States...

  6. PART 2

    • 5 Habeas Corpus and the Right to Challenge Unlawful Imprisonment
      (pp. 81-100)

      The writ of habeas corpus first emerged in England around the early thirteenth century as a mechanism to ensure a person’s presence in court.¹ Of the several forms of the writ that developed, one,habeas corpus ad subjiciendum, enabled a court to examine whether there was a lawful basis for a prisoner’s confinement by ordering the jailer to produce both the prisoner and the cause for his commitment.Habeas corpus ad subjiciendumwas initially used by the king’s common law courts to limit the jurisdiction of local and rival central courts, such as the specialized courts that decided ecclesiastical and...

    • 6 The Seeds of a Global Constitution
      (pp. 101-114)

      At the time the United States was founded, little thought was given to whether the Constitution applied outside its territory. Instead, the Constitution’s framers focused inward on developing and securing a republican form of government.¹ Although they contemplated the possibility of military action overseas, they did not envision the extent to which America’s military power, let alone its political, commercial, and cultural influence, would be projected beyond the country’s shores over the next two centuries. Nor could they foresee how law enforcement would one day have to undertake international operations in areas from narcotics trafficking to global terrorism.

      History, however,...

  7. PART 3

    • 7 A Modest Judicial Intervention: The First Supreme Court “Enemy Combatant” Decisions
      (pp. 117-128)

      On April 20, 2004, the Supreme Court heard argument inRasul v. Bush, the first Guantánamo detainee case to reach the Court.¹ Just over a week later, on April 28, the Court heard argument in the cases of alleged “enemy combatants” Yaser Hamdi and Jose Padilla.² That same evening,60 Minutes IIbroadcast the first pictures from Iraq’s Abu Ghraib prison documenting the torture and other mistreatment of prisoners by the United States. The pictures validated the concern that several justices had voiced during Hamdi’s argument that morning: that by exempting the president’s sweeping claims of executive power from habeas...

    • 8 The Battle for Habeas Corpus Continues
      (pp. 129-149)

      On October 5, 2004, District Judge Robert G. Doumar issued an ultimatum. Yaser Hamdi’s case had just been remanded from the Supreme Court. Under the Court’s decision, the government could continue to detain Hamdi as an “enemy combatant” only if it proved that Hamdi was, in fact, a Taliban soldier who had fought against the United States in Afghanistan. The government and Hamdi’s lawyers had already notified Judge Doumar that they were negotiating an agreement for Hamdi’s return to Saudi Arabia. But Doumar was growing impatient with the delay. So he scheduled a hearing for the following week and, in...

    • 9 Tackling Prisons beyond the Law: Guantánamo Revisited
      (pp. 150-172)

      On September 6, 2006, President Bush delivered a nationally televised speech describing the current state of U.S. detention policy. He began by recalling the tragic events that had occurred almost five years to the date and reiterating his promise to do everything within his power—and “within America’s laws”—to prevent another terrorist attack. The president then publicly acknowledged for the first time that the CIA operated a “separate program” of secret imprisonment, although the program’s existence had been widely reported for years. The president said that the program targeted so-called high-value detainees like Abu Zubaydah, Khalid Sheikh Mohammed (KSM),...

  8. PART 4

    • 10 Toward a Better Understanding of Habeas Corpus: Individual Rights and the Role of the Judiciary during Wartime
      (pp. 175-190)

      Centuries ago, the king declared people enemies of the state and locked them away in the Tower of London. After the attacks on September 11, 2001, the president called them “enemy combatants” and imprisoned them at Guantánamo and other offshore prisons. In both instances, habeas corpus emerged as a critical check against executive detention without judicial review.

      Some people have claimed that habeas corpus undermines the fight against terrorism and jeopardizes America’s security. The most extreme critics have even accused the detainees’ attorneys of waging “lawfare,” as though defending a person deprived of his liberty in court was a form...

    • 11 The Elusive Custodian: Some Potential Limits of Habeas Corpus
      (pp. 191-204)

      The enduring strength of habeas corpus is that it requires the state to justify a prisoner’s detention before an independent court that has the power to find the detention illegal and order the prisoner’s release. But in that strength lies a weakness: the incentive it creates for the state to structure its detention operations to avoid habeas corpus altogether or to curtail the court’s ability to grant an effective remedy, an incentive that can be particularly strong in matters affecting national security.

      Actions taken after the September 11 attacks illustrate this paradox, from the Bush administration’s decision to transfer prisoners...

    • 12 Terrorism as Crime: Toward a Lawful and Sustainable Detention Policy
      (pp. 205-237)

      As the Bush presidency neared its end, approximately 250 prisoners were still being held at Guantánamo, hundreds more in Bagram, thousands in Iraq, and an undefined number in secret or proxy detention. One person was still being detained as an “enemy combatant” inside the United States. For more than five and a half years, Ali al-Marri had been imprisoned without criminal charge or trial at a navy brig in Charleston, South Carolina. Al-Marri had been detained by the military even though he did not meet any traditional or legal definition of a combatant: he was not a member of the...

    • 13 Continuity and Change: The Detention Policy of a New Administration
      (pp. 238-258)

      On his inauguration as the forty-fourth president of the United States on January 20, 2009, Barack Obama suggested a new direction for America’s national security policy: “As for our common defense, we reject as false the choice between our safety and our ideals.”¹ Two days later, in one of his first official acts as president, Obama issued a directive mandating the closure of the detention facility at Guantánamo Bay within one year. He also issued three executive orders that day. One banned harsh interrogation methods by confining the CIA to techniques contained in the U.S.Army Field Manualand mandating...

  9. Notes
    (pp. 259-312)
  10. Index
    (pp. 313-322)
  11. About the Author
    (pp. 323-323)