Habeas Corpus after 9/11: Confronting America's new global detention system

Habeas Corpus after 9/11: Confronting America's New Global Detention System

Volumn , Issue , 2011, Pages 1-323

  Hafetz, Jonathan ^a  

^a SETON HALL UNIVERSITY   (United States)

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EID: 84900592837     PISSN: None     EISSN: None     Source Type: Book    
DOI: None     Document Type: Book

References (307)

1. Louise Richardson, What Terrorists Want: Understanding the Enemy, Containing the Threat (New York: Random House, 2006), 144.
2. See also Nancy Gibbs, "What a Difference a Year Makes," Time, September 9, 2002.
3. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
4. George W. Bush, "Address to a Joint Session of Congress and the American People, September 20, 2001," in Public Papers of the Presidents of the United States: George W. Bush, 2001 (Washington, DC: U.S. Government Printing Office, 2003), book 2, 1140-44.
5. Jeffrey Rosen, "Conscience of a Conservative," New York Times, September 9, 2007;
6. Michael Dorf, "The Justice Department's Change of Heart regarding Torture: A Fair-Minded and Praiseworthy Analysis That Could Have Gone Still Further," Findlaw, January 5, 2005.
7. George W. Bush, "Remarks by the President to Employees at the Pentagon and an Exchange with Reporters in Arlington, Virginia, September. 17, 2001," in Public Papers of the Presidents of the United States: George W. Bush, 2001, book 2, 1120.
8. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
9. Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), 93-94.
10. See Joseph Margulies, Guantánamo and the Abuse of Presidential Power (New York:Simon & Schuster, 2006), 73-83.
11. U.S. Department of the Army, Army Field Manual 34-52: Intelligence Interrogation (May 8, 1987).
12. Military Order, "Detention, Treatment, and Trial of Certain Non-citizens in the War against Terrorism," November 13, 2001, in Greenberg and Dratel, The Torture Papers, 25-28.
13. Louis Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (Lawrence: University Press of Kansas, 2005).
14. Tim Golden, "After Terror, a Secret Rewriting of Military Law," New York Times, October 24, 2004. The group included John Yoo, David Addington, and former deputy White House counsel Timothy E. Flanigan.
15. The memo was reportedly drafted by David Addington. See Barton Gellman and Jo Becker, "A Different Understanding with the President," Washington Post, June 24, 2007.
16. David Luban, "Liberalism, Torture, and the Ticking Bomb," in The Torture Debate in America, ed. Karen J. Greenberg (Cambridge: Cambridge University Press, 2006), 35-83.
17. Douglas Jehl and David Johnston, "White House Fought New Curbs on Interrogations, Officials Say," New York Times, January 13, 2005;
18. Ron Suskind, The One Percent Doctrine: Deep Inside of America's Pursuit of Its Enemies since 9/11 (New York: Simon & Schuster, 2006), 115.
19. International Committee of the Red Cross, "ICRC Report on the Treatment of Fourteen 'High Value Detainees' in CIA Custody" (February 2007), 22.
20. Editorial, "The Torturers' Manifesto," New York Times, April 19, 2009.
21. Jack Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration (New York: W. W. Norton, 2007), 144.
22. See also Mark Danner, "U.S. Torture: Voices from the Black Sites," New York Review of Books, April 9, 2009.
23. Dana Priest, "CIA Puts Harsh Tactics on Hold; Memo on Methods of Interrogation Had Wide Review," Washington Post, June 27, 2004.
24. Jane Crawford Greenburg et al., "Bush Aware of Advisers' Interrogation Talks," ABCNews, April 11, 2008;
25. R. Jeffrey Smith and Peter Finn, "Harsh Methods Approved as Early as Summer 2002; Holder Declassifies Timeline of Actions by Top Bush Administration Officials regarding Interrogation," Washington Post, April 23, 2009.
26. Dan Eggen and Josh White, "Memo: Laws Didn't Apply to Interrogators: Justice Dep't Official in 2003 Said President's Wartime Authority Trumped Many Statutes," Washington Post, April 2, 2008.
27. Paul Kramer, "The Water Cure: Debating Torture and Counterinsurgency-A Century Ago," New Yorker, February 25, 2008.
28. Harold H. Koh, "Regarding the Nomination of the Honorable Alberto R. Gonzales as Attorney General of the United States" (Statement to the U.S. Senate Committee on the Judiciary, January 7, 2005).
29. Ruth Wedgwood and R. James Woolsey, "Law and Torture," Wall Street Journal, June 28, 2004.
30. Robert E. Harkavy, Great Power Competition for Overseas Bases: The Geopolitics of Access Diplomacy (New York: Pergamon Press, 1982), 3, 5, 206-9.
31. Jeffrey Toobin, "Camp Justice," New Yorker, April 14, 2008.
32. Gerald L. Neuman, "Closing the Guantanamo Loophole," 50 Loyola Law Review 1, 34, 39 (2004).
33. See Brandt Goldstein, Storming the Court: How a Band of Yale Law Students Sued the President-And Won (New York: Scribner, 2005). Chapter 2
34. Julian Borger, "Cargo of 'Worst' al-Qaida Captives Unloads in Cuba," The Guardian, January 12, 2002;
35. Ben Fenton, "Prisoners Locked in Seats: U.S. Takes Tough Precautions as Flights to Guantanamo Begin," The Gazette, January 11, 2002;
36. James Dao, "A Nation Challenged: Military; U.S. Is Taking War Captives to Cuba Case," New York Times, January 11, 2002;
37. Michael Hedges, "America Responds; Detainees Rights Not Violated, U.S. Insists after Plane Lands," Houston Chronicle, January 12, 2002;
38. Sue Anne Pressley, "At Guantanamo Bay, a Peaceful Night; Afghan War Detainees Sleep Soundly after 27-Hour, 8,000-Mile Trip," Washington Post, January 13, 2002;
39. David Rose, "World Exclusive: Inside Guantanamo: How We Survived Jail Hell," The Observer, March 14, 2004;
40. Katharine Q. Seelye, "A Nation Challenged: The Prisoners; First 'Unlawful Combatants' Seized in Afghanistan Arrive at U.S. Base in Cuba," New York Times, January 12, 2002.
41. Carol D. Leonnig and Julie Tate, "Some at Guantanamo Mark 5 Years in Limbo," Washington Post, January 16, 2007.
42. Jeffrey Toobin, "Inside the Wire; Can an Air Force Colonel Help the Detainees at Guantanamo?" New Yorker, February 9, 2004;
43. Carol J. Williams, "At Guantanamo: Hard Time and a View of What Could Have Been," Los Angeles Times, October 7, 2006.
44. Jeffrey Toobin, "Camp Justice," New Yorker, April 14, 2008.
45. Michelle Shephard, "The View from Guantánamo Bay," Toronto Star, February 4, 2007.
46. Kathleen T. Rehm, "Detainees Living in Varied Conditions at Guantánamo," American Forces Press Service, February 16, 2005;
47. Miami Herald, "Web Extra: A Prison Camps Primer," February 6, 2008, available at http://www.miamiherald.com/news/more-info/vfullstory/story/102770.html (last updated April 27, 2010).
48. Gerry J. Gilmore, "Rumsfeld Visits, Thanks U.S. Troops at Camp X-Ray in Cuba," American Forces Press Services, January 27, 2002.
49. Neil A. Lewis and Eric Schmitt, "Guantánamo Prisoners Could Be Held for Years, U.S. Officials Say," New York Times, February 13, 2004.
50. Maura Reynolds, "No Tax Hike for Bridges," Los Angeles Times, August 10, 2007, A12.
51. Mark Denbeaux and Joshua Denbeaux, "Report on Guantánamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data" (Newark, NJ:Seton Hall Law School, 2006).
52. See also Mark Denbeaux et al., "The Empty Battlefield and the Thirteenth Criterion" (Newark, NJ: Seton Hall Law School, 2007).
53. Mark Denbeaux and Joshua Denbeaux, "Second Report on the Guantánamo Detainees: Inter- and Intra-Departmental Disagreements about Who Is Our Enemy" (Newark, NJ: Seton Hall Law School, 2006).
54. Jared A. Goldstein, "Habeas without Rights," Wisconsin Law Review 1165, 1170 (2007).
55. Ben Russell, "Camp Delta Protests," Independent, January 9, 2007.
56. United Nations Development Program, United Nations Office for Coordination of Humanitarian Affairs, "Assistance for Afghanistan Weekly Update," issue no. 429, September 12, 2001.
57. Pervez Musharraf, In the Line of Fire: A Memoir (New York: Free Press, 2006).
58. Frederick L. Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti (Washington, DC: U.S. Army, Office of the Judge Advocate General and Center of Military History, 2001), 22.
59. U.S. Department of Defense, Conduct of the Persian Gulf War: Final Report to Congress, (Washington, DC: U.S. Government Printing Office, 1992), L-3.
60. Jane Mayer, "The Hidden Power: The Legal Mind behind the White House's War on Terror," New Yorker, July 3, 2006.
61. Tim Golden, "Tough Justice: Administration Officials Split over Stalled Military Tribunals," New York Times, October 25, 2004.
62. Tim Golden, "Expecting U.S. Help, Sent to Guantánamo," New York Times, October 15, 2006, A1.
63. Christopher Cooper, "Detention Plan: In Guantánamo, Prisoners Languish in Sea of Red Tape," Wall Street Journal, January 26, 2005, A1.
64. Tim Golden, "After Terror, a Secret Rewriting of Military Law," New York Times, October 24, 2005, A1.
65. Jess Bravin, "U.S. Seeks Death Penalty for Gitmo Six," Wall Street Journal, February 11, 2008.
66. See Karen J. Greenberg, The Least Worse Place: Guantanamo's First 100 Days (New York: Oxford University Press, 2009).
67. U.S. Department of the Army, Army Field Manual 34-52: Intelligence Interrogation (1992), 1-8.
68. Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), 220.
69. Diane E. Beaver, Legal Brief on Proposed Counter-Resistance Strategies, October 12, 2002, in Greenberg and Dratel, The Torture Papers, 229.
70. Marty Lederman, "GTMO: Where Was the Law? Whither the UCMJ," Balkinization, June 14, 2005;
71. Jane Mayer, "The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees Was Thwarted," New Yorker, February 27, 2006.
72. Mark Benjamin, "A Timeline to Bush Government Torture," Salon.com, June 18, 2008.
73. Philippe Sands, Torture Team: Rumsfeld's Memo and the Betrayal of American Values (New York: Palgrave Macmillan, 2008), 127-30.
74. Bob Woodward, "Detainee Tortured, Says U.S. Official," Washington Post, January 14, 2009 (quoting Susan J. Crawford, the convening authority for military commissions).
75. Senator Carl Levin, "Senate Floor Speech on the Amendment to Establish an Independent Commission on Detainee Treatment," November 4, 2005;
76. Marty Lederman, "Silver Linings (or the Strange but True Fate of the Second (or Was It the Third?) OLC Torture Memo," Balkinization, September 21, 2005.
77. "Working Group Report on Detainee Interrogations in the Global War on Terrorism:Assessment of Legal, Historical, Policy, and Operational Considerations" (April 3, 2003), in Greenberg and Dratel, The Torture Papers, 286, 341-42.
78. Joby Warrick, "Detainees Allege Being Drugged, Questioned," Washington Post, April 22, 2008.
79. U.S. Department of Justice, Office of Inspector General, "A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq" (May 2008);
80. Carrie Johnson and Josh White, "Interrogation Tactics Were Challenged at White House," Washington Post, May 22, 2008.
81. Neil A. Lewis, "Red Cross Finds Detainee Abuse in Guantánamo," New York Times, November 29, 2004.
82. Scott Shane, "China Inspired Interrogations at Guantánamo," New York Times, July 2, 2008.
83. Stephen Grey, Ghost Plane: The True Story of the CIA Torture Program (New York: St. Martin's Press, 2006), 48-51.
84. Ron Suskind, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies since 9/11 (New York: Simon & Schuster, 2006), 117.
85. Phil Hirschkorn, "Pentagon IDs Suspected Terror Accomplice," CNN.com, December 10, 2005.
86. Peter Finn, "Key Allegations against Terror Suspect Withdrawn," Washington Post, October 15, 2008;
87. Richard Norton Taylor et al., "Binyam Mohamed Returns to Britain after Guantánamo Ordeal," The Guardian, February 23, 2009.
88. Mark Danner, "U.S. Torture: Voices from the Black Sites," New York Review of Books, April 9, 2009.
89. Devlin Barrett, "CIA Destroyed 92 Interrogation Recordings," Associated Press, March 3, 2009.
90. Eliza Griswold, "The Other Guantánamo: Black Hole," New Republic, May 7, 2007;
91. Tim Golden and Eric Schmitt, "A Growing Afghan Prison Rivals Bleak Guantánamo," New York Times, February 26, 2006.
92. Reed Brody, The Road to Abu Ghraib (New York: Human Rights Watch, 2004), 21.
93. Nicholas D. Kristof, "Sami's Shame, and Ours," New York Times, October 17, 2006.
94. Tim Golden, "Years after 2 Afghans Died, Abuse Case Falters," New York Times, February 13, 2006.
95. Tim Golden, "In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths," New York Times, May 20, 2005;
96. Tim Golden, "Army Faltered in Investigating Detainee Abuse," New York Times, May 22, 2005.
97. William Safire, "War Words," New York Times, June 20, 2004.
98. See D. Cameron Findlay, "Abducting Terrorists Overseas for Trial in the United States: Issues of International and Domestic Law," 37 Texas International Law Journal 1, 2-3 (1988).
99. Jane Mayer, "Outsourcing Torture," New Yorker, February 14, 2005.
100. National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (New York: Norton, 2004), 176.
101. Ian Austen, "Canada Will Pay $9.75 Million to Man Sent to Syria and Tortured," New York Times, January 27, 2007.
102. Scott Shane, "Justice Dept. Amends Remark on Torture Case," New York Times, September 21, 2006.
103. Scott Shane, "Canadian to Remain on U.S. Terrorist Watch List," New York Times, January 23, 2007.
104. Rachel Donadio, "Italy Convicts 23 Americans for C.I.A. Renditions," New York Times, November 4, 2009;
105. Jamie Smyth, "U.S. Will Not Extradite CIA Agents to Italy," Irish Times, March 1, 2007.
106. See Margaret L. Satterthwaite, "Rendered Meaningless: Extraordinary Rendition and the Rule of Law," 75 George Washington Law Review 1333, 1343 (2007).
107. Leila Nadya Sadat, "Ghost Prisoners and Black Sites: Extraordinary Rendition under International Law," 37 Case Western Reserve Journal of International Law 309, 319-21 (2006).
108. Condoleezza Rice, U.S. Secretary of State, Remarks upon Her Departure for Europe (December 5, 2005).
109. United States, "Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantánamo Bay, Cuba," March 10, 2006.
110. For an elaboration of these arguments, see John Yoo, "Transferring Terrorists," 79 Notre Dame L. Rev. 1183 (2004).
111. Elisabeth Bumiller, David E. Sanger, and Richard W. Stevenson, "Bush Says Iraqis Will Want G.I.s to Stay to Help," New York Times, January 28, 2005.
112. Dana Priest and Barton Gellman, "U.S. Decries Abuse but Defends Interrogations:'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities," Washington Post, December 26, 2002.
113. Dana Priest, "CIA Holds Terror Suspects in Secret Prisons," Washington Post, November 2, 2005;
114. Human Rights Watch, "Statement on US Secret Detention Facilities in Europe," November 7, 2005;
115. Council of Europe, Committee on Legal Affairs and Human Rights, "Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report" (Explanatory Memorandum), June 7, 2007;
116. "List of 12 Operatives Held in CIA Prisons," ABC News, December 5, 2005;
117. Matthew Cole, "Officials:Lithuania Hosted Secret CIA Prison to Get 'Our Ear,'" ABC News, August 20, 2009.
118. Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), 147-48.
119. "U.S. Bars Access to Terror Suspects," BBC News, December 9, 2005.
120. Office of the Press Secretary, "President Addresses Nation, Discusses Iraq, War on Terror," June 28, 2005.
121. Andrew Carcano, "End of the Occupation in 2004? The Status of the MultiNational Force in Iraq after the Transfer of Sovereignty to the Interim Iraqi Government," 11 Journal of Conflict & Security Law 41 (2006);
122. Gregory H. Fox, "The Occupation of Iraq," 36 Georgetown Journal of International Law 195 (2005).
123. "U.S. Still Holds 5,000 Prisoners in Iraq," Radio Free Europe, January 26, 2010.
124. Senior Military Official (unnamed), "Interrogation Procedures and Detention Facilities in Iraq," Defense Department Background Briefing in Pentagon Briefing Room, Arlington, VA (May 14, 2004).
125. Human Rights First, "Ending Secret Detentions," 11-12 (June 2004).
126. Thomas E. Ricks, Fiasco: The American Military Adventure in Iraq (New York: Penguin, 2006), 283.
127. Alex Barker and Demetri Sevastopulo, "Hands Tied: The U.S. Struggles to Get out of the 'Detention Business' in Iraq," Financial Times, July 16, 2007.
128. Seymour M. Hersh, "Torture at Abu Ghraib," New Yorker, May 10, 2004.
129. Eliza Griswold, "American Gulag: Prisoners' Tales from the War on Terror," Harpers, September 2006.
130. Josh White, "Army Documents Shed Light on C.I.A. 'Ghosting,'" Washington Post, March 24, 2005.
131. Bradley Graham and Josh White, "General Cites Hidden Detainees; Senators Told CIA May Have Avoided Registering Up to 100," Washington Post, September 10, 2004;
132. Eric Schmitt and Douglas Jehl, "Army Says C.I.A. Hid More Iraqis Than It Claimed," New York Times, September 10, 2004.
133. Seth F. Kreimer, "Rays of Sunlight in a Shadow 'War': FOIA, the Abuses of Anti-Terrorism, and the Strategy of Transparency," 11 Lewis & Clark Law Review 1141, 1199-1200 (2007).
134. Susan Sontag, Regarding the Pain of Others (New York: Farrar, Straus & Giroux, 2002).
135. John H. Richardson, "Acts of Conscience," Esquire, August 2006.
136. Eric Schmitt and Carolyn Marshall, "In Secret Unit's 'Black Room,' A Grim Portrait of U.S. Abuse," New York Times, March 19, 2006.
137. Jeffrey Gettleman, "The Struggle for Iraq: The Detainees," New York Times, March 9, 2004.
138. Alberto R. Gonzales, Counsel to the President, "Statement to the American Bar Association Standing Committee on Law and National Security," Washington, DC, February 24, 2004.
139. Rachel L. Swarns, "Thousands of Arabs and Muslims Could Be Deported, Officials Say," New York Times, June 7, 2003.
140. Migration Policy Institute, "America's Challenge: Domestic Security, Civil Liberties, and National Unity after September 11," 51 (2003), (citing memorandum from Deputy Attorney General to the Commissioner of the INS, Director of the Federal Bureau of Investigation, Director of the United States Marshals Service, and U.S. Attorneys (January 25, 2002));
141. Susan Sachs, "Traces of Terror: The Detainees; Cost of Vigilance, This Broken Home," New York Times, June 4, 2002.
142. Susan M. Akram and Maritza Karmely, "Immigration and Constitutional Consequences of Post-9/11 Policies Involving Arabs and Muslims in the United States: Is Alienage a Distinction without a Difference," 38 U.C. Davis Law Review 609, 630-31 (2005).
143. See Neil A. Lewis, "Immigrants Offered Incentives to Give Evidence on Terrorists," New York Times, November 29, 2001;
144. William Lyons, "Partnerships, Information and Public Safety," 25 Policing: An International Journal of Police Strategies and Management 530 (2002).
145. Anjana Malhotra, "Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11," (New York: Human Rights Watch, 2005), 2, 16, 81.
146. Malhotra, "Witness to Abuse," 48-50.
147. Steven T. Wax and Christopher J. Schatz, "A Multitude of Errors: The Brandon Mayfield Case," The Champion 6 (September/October 2004).
148. Order Declaring Ali Saleh Kahlah al-Marri an Enemy Combatant, June 23, 2003.
149. John Ashcroft, Never Again: Securing America and Restoring Justice (New York: Center Street, 2006), 168-69.
150. Dan Herbeck, "2 Defendants Feel Pressure for Plea Deals," Buffalo News, April 6, 2003.
151. Joel Brinkley and Eric Lichtblau, "Held 3 Years by U.S., Saudi Goes Home," International Herald Tribune, October 13, 2004;
152. Jerry Markon, "'Combatant' Returned to Saudis; U.S. Citizen Had Been Detained Almost 3 Years," Washington Post, October 12, 2004. Chapter 5
153. R. J. Sharpe, The Law of Habeas Corpus, 2d ed. (New York: Oxford University Press, 1989), 1-2.
154. William Blackstone, Commentaries on the Laws of England (1765-69), vol. 1, 137.
155. William Blackstone, Commentaries on the Laws of England (1765-69), vol. 3, 131 .
156. Albert V. Dicey, Introduction to the Study of the Law of the Constitution (London:Macmillan, 1908), 226.
157. Sir Edward Coke, The Second Part of the Institutes of the Laws of England, 5th ed. (London: E & R. Brooke, 1797), 43.
158. Leonard Woods Labaree, ed., Royal Instructions to British Colonial Governors (New York: D. Appleton Century, 1935), vol. 1, 334-38 (Crown instructions to the governors of Barbados, the Bahamas, and St. John in the West Indies, Nova Scotia, and Quebec).
159. A. B. Keith, A Constitutional History of India, 1600-1935 (1969), 24-25.
160. P. J. Marshall, "The British in Asia: Trade to Dominion, 1700-1765," in The Oxford History of the British Empire, vol. 2, ed. P. J. Marshall (Oxford: Oxford University Press, 1998/99), 487, 503.
161. H. H. Dodwell, ed., British India, 1497-1858, vol. 4 of The Cambridge History of the British Empire (Cambridge: Cambridge University Press, 1929), 595, 605.
162. Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003), 81 (writ issued in 1775 on behalf of revenue collector imprisoned by East India Company over issue of late payments);
163. B. N. Pandey, The Introduction of English Law into India: The Career of Elijah Impey in Bengal, 1774-1783 (Bombay: Asia Publishing House, 1967), 151 (writ issued in 1777 on behalf of Indian arrested and confined without trial in Bengal).
164. Francis Paschal, "The Constitution and Habeas Corpus," Duke Law Journal 605, 608 (1970);
165. Milton Cantor, "The Writ of Habeas Corpus: Early American Origins and Development," in Freedom and Reform: Essays in Honor of Henry Steele Commager, ed. Harold M. Hyman and Leonard W. Levy (New York: Harper & Row, 1967), 55, 74;
166. Rollin C. Hurd, A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus, 2d ed. (Albany, NY: W. C. Little & Co., Law Booksellers, 1876), 101-2.
167. Daniel J. Meador, Habeas Corpus and Magna Carta: Dualism of Power and Liberty (Charlottesville: University of Virginia Press, 1966), 24.
168. See also Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1997), 290-93;
169. Louis Henkin: "Rights: American and Human," 79 Columbia Law Review 405, 408-9 (1979).
170. A. H. Carpenter, "Habeas Corpus in the Colonies," 8 American Historical Review 18, 21, 26 (1902).
171. See also Gerald L. Neuman, "Habeas Corpus and the Suspension Clause after INS v. St. Cyr," 33 Columbia Human Rights Law Review 555, 566 (2002).
172. Max Farrand, The Records of the Federal Convention of 1787, vol. 2 (New Haven, CT:Yale University Press, 1911), 341, 438;.
173. Zechariah Chafee Jr., "The Most Important Human Right in the Constitution," 32 Boston University Law Review 143, 143 (1952).
174. David L. Shapiro, "Habeas Corpus, Suspension, and Detention: Another View," 59 Notre Dame Law Review 59, 64 (2006).
175. Eric M. Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty (New York:New York University Press, 2001), 20-21;.
176. Rex Collings, "Habeas Corpus for Convicts-Constitutional Right or Legislative Grace?" 40 California Law Review 335, 340 (1952).
177. Gerald L. Neuman, "Habeas Corpus, Executive Detention, and the Removal of Aliens," 98 Columbia Law Review 961, 975 (1998);.
178. See David J. Barron and Martin S. Lederman, "The Commander in Chief at the Lowest Ebb-A Constitutional History," 121 Harvard Law Review 941, 997 (2008).
179. Daniel Farber, Lincoln's Constitution (Chicago: University of Chicago Press, 2003), 16-17.
180. Jeffrey D. Jackson, "The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex Parte Merryman," 34 University of Baltimore Law Review 11, 15-24 (2004).
181. "Message to Congress in Special Session," July 4, 1861, reprinted in The Collected Works of Abraham Lincoln, vol. 4, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 430-31.
182. See also Stephen I. Vladeck, Note: "The Detention Power," 22 Yale Law & Policy Review 153, 162 (2004).
183. Steven R. Shapiro, "The Role of the Courts in the War against Terrorism: A Preliminary Assessment," 29 WTR Fletcher F. World Aff. 103, 104 (2005);
184. Mark E. Neely Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (Oxford: Oxford University Press, 2001), 20-23, 113-31.
185. Lou Falkner Williams, The Great South Carolina Ku Klux Klan Trials, 1871-1872 (Athens:University of Georgia Press, 1996), 46;
186. Amanda L. Tyler, "Is Suspension a Political Question?" 59 Stanford Law Review 333, 345-46 (2006).
187. Gerald L. Neuman and Charles F. Hobson, "John Marshall and the Enemy Alien: A Case Missing from the Canon," 9 Green Bag 2d 39 (2005). State courts similarly entertained habeas petitions on behalf of foreign nationals during wartime. See, for example, Lockington's Case, Bright (N.P.) 269 (Pa. 1813) (reviewing claim of British citizen detained under Alien Enemies Act of 1798 but denying relief).
188. Steven I. Vladeck, "Enemy Aliens, Enemy Property, and Access to the Courts," 11 Lewis & Clark Law Review 963, 970-79 (2007).
189. Richard H. Fallon Jr. and Daniel J. Meltzer, "Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror," 120 Harvard Law Review 2029, 2099-2100 (2007).
190. Edward S. Corwin, Total War and the Constitution (New York: Knopf, 1947), 117.
191. At the time, a criminal conviction for sabotage carried a maximum thirty-year sentence. See Daniel J. Danelski, "The Saboteurs' Case," Journal of Supreme Court History 1, 61, 65-66 (1996).
192. Francis Biddle, In Brief Authority (New York: Doubleday, 1962), 331.
193. Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (Lawrence: University Press of Kansas, 2003), 119-21.
194. For another excellent account, see Pierce O'Donnell, In Time of War: Hitler's Terrorist Attack on America (New York: New Press, 2005).
195. Steven B. Ives Jr., "Vengeance Did Not Deliver Justice," Washington Post, December 30, 2001.
196. Richard L. Lael, The Yamashita Precedent: War Crimes and Command Responsibility (Wilmington, DE: Scholarly Resources, 1982), 81;.
197. See Timothy Endicott, "Habeas Corpus and Guantánamo Bay: A View from Abroad," 54 American Journal of Jurisprudence 1 (2009).
198. Hirota was the only civilian sentenced to death by the Tokyo tribunal. See Steven I. Vladeck, "Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III," 95 Georgetown Law Journal 1497, 1499-1500 (2007).
199. Charles Fairman, "Some New Problems of the Constitution Following the Flag," 1 Stanford Law Review 587, 597-600 (1949)
200. Vladeck, "Deconstructing Hirota," 1524-25.
201. J. Andrew Kent, "A Textual and Historical Case against a Global Constitution," 95 Georgetown Law Journal 463, 488-89 (2007).
202. Louis Henkin, Constitutionalism, Democracy and Foreign Affairs (New York: Columbia University Press, 1990), 99-100.
203. Christina Duffy Burnett, "American Expansion and Territorial Deannexation," 72 University of Chicago Law Review 797 (2005).
204. Gerald L. Neuman, "Whose Constitution?" 100 Yale Law Journal 909, 965 (1991).
205. See Harold Hongju Koh, "America's Offshore Refugee Camps," 29 Richmond Law Review 139-43, 153-55 (1994)
206. Brandt Goldstein, Storming the Court: How a Band of Yale Law Students Sued the President-And Won (New York: Scribner, 2005).
207. Memorandum for the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, July 7, 2004 (CSRT Order).
208. Mark Denbeaux and Joshua Denbeaux, No-Hearing Hearings: An Analysis of the Government's Combatant Status Review Tribunals at Guantánamo (Newark, NJ: Seton Hall Law School, 2006), 14-18.
209. Geri L. Dreiling, "Changing the Ground Rules: DOJ Proposes New Limits on Lawyer Access to Detainees," ABA Journal & Report, November 3, 2006.
210. James Risen, State of War: The Secret History of the CIA and the Bush Administration (New York: Free Press, 2006), 33
211. Baher Azmy, "Executive Detention, Boumediene, and the New Common Law of Habeas," 95 Iowa Law Review 445, 478 (2010).
212. Farah Stockman, "Some Cleared Guantanamo Inmates Stay in Custody," Boston Globe, November 19, 2007.
213. Tim Golden, "Naming Names at Gtmo," New York Times, October 21, 2007.
214. For a collection of these accounts, see Mark Denbeaux and Jonathan Hafetz, eds., The Guantánamo Lawyers: Inside a Prison Outside the Law (New York: New York University Press, 2009).
215. See Murat Kurnaz, Five Years of My Life: An Innocent Man in Guantanamo (New York: Palgrave Macmillan, 2008)
216. Moazzam Begg, Enemy Combatant: My Imprisonment at Guantanamo, Bagram, and Kandahar (New York: New Press, 2007).
217. Carol D. Leonnig, "Evidence of Innocence Rejected at Guantanamo," Washington Post, December 5, 2007, A1.
218. See, for example, U.S. Department of State, "Country Reports on Human Rights Practices 2003: Egypt" (Washington, DC: U.S. Government Printing Office, 2004).
219. Raymond Bonner, "Australian's Long Path in the U.S. Anti-Terrorism Maze," New York Times, January 29, 2005.
220. Jonathan Mahler, "The Bush Administration vs. Salim Hamdan," New York Times, January 8, 2006.
221. Press release, "Department of Defense, President Determines Enemy Combatants Subject to His Military Order," July 3, 2003.
222. U.S. Department of Defense, "Military Commission List of Charges for Salim Ahmed Hamdan," July 13, 2004.
223. Scott Shane et al., "Secret U.S. Endorsement of Severe Interrogations," New York Times, October 4, 2007.
224. George W. Bush, "President's Statement on Signing of H.R. 2863," December 30, 2005.
225. For a discussion of Bush's unprecedented use of signing statements, see Phillip J. Cooper, "George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements," 35 Presidential Studies Quarterly 515 (2005).
226. Deborah Sontag, "In Padilla Wiretaps, Murky View of 'Jihad' Case," New York Times, January 4, 2007.
227. Douglas Jehl and Eric Lichtblau, "Shift on Suspect Is Linked to Role of Qaeda Figures," New York Times, November 24, 2005.
228. Kirk Semple, "Padilla Sentenced to 17 Years in Prison," New York Times, January 22, 2008.
229. See Donna Mills, "England Memo Underscores Humane Policy on Treatment of Detainees," American Forces Press Service, July 11, 2006.
230. John Yoo, "Congress to Courts: 'Get Out of the War on Terror,'" Wall Street Journal, October 19, 2006, A18.
231. Scott Horton, "The Guantánamo 'Suicides': A Camp Delta Sergeant Blows the Whistle," Harper's, March 2010.
232. Josh White, "Death of Guantanamo Detainee Is Apparent Suicide, Military Says," Washington Post, May 31, 2007.
233. Jason Oddy, "Living with the Enemy," Independent (London), December 7, 2003.
234. Josh White, "ICRC Chief Faults Rights Protections at Guantanamo," Washington Post, April 5, 2007.
235. Lizette Alvarez, "Rights Group Defends Chastising of U.S," New York Times, June 4, 2005.
236. "Top UK Judge Slams Camp Delta," BBC News, November 23, 2003.
237. Jeffrey Toobin, "Camp Justice," New Yorker, April 14, 2008.
238. David L. Franklin, "Enemy Combatants and the Jurisdictional Fact Doctrine," 29 Cardozo Law Review 1001, 1032 (2008).
239. Rosa Ehrenreich Brooks, "War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror," 153 University of Pennsylvania Law Review 675, 729 (2004).
240. Derek Jinks, "The Declining Significance of POW Status," 45 Harvard International Law Journal 367, 406-9 (2004).
241. U.S. Army-Marine Corps, Counterinsurgency Field Manual, para. I-132 (Chicago:University of Chicago Press, 2007).
242. Joanne Mariner, "We'll Make You See Death," Salon.com, June 4, 2008.
243. For a critique of the court's admission of these statements, see, for example, Jon Sawyer, "Abu Ali Case Shows U.S. Outsourcing Dirty Work, Some Say," St. Louis Post-Dispatch, December 4, 2005.
244. Human Rights Watch, "Ghost Prisoner: Two Years in Secret CIA Detention" (New York: Human Rights Watch, February 2007), 2-3.
245. Paul Salopek, "Renditions Fuel Anger against U.S.," Chicago Tribune, December 4, 2008.
246. U.S. Embassy, Kabul, Afghanistan, "Detainee Transfers to Afghanistan," press release, August 4, 2005.
247. Tim Golden, "Foiling U.S. Plans, Prison Expands in Afghanistan," New York Times, January 18, 2008
248. "U.S. Eyes Afghan Jail for Some Gitmo Detainees," MSNBC.com, June 22, 2007.
249. Hal Brenton and Sara Jean Green, "Ressam Judge Decries U.S. Tactics," Seattle Times, July 28, 2005.
250. See, for example, David B. Rivkin Jr. and Lee A. Casey, Op-ed: "Impunity for al-Qaeda: The Implications of a Bad Ruling on 'Unlawful Enemy Combatants,'" Washington Post, July 2, 2007.
251. Tom Malinowski, Op-ed: "When Terrorists Become 'Warriors,'" Washington Post, March 18, 2007.
252. U.S. Department of Defense, "Verbatim (Unclassified) Transcript of Combatant Status Review Tribunal Hearing for ISN 10024," at 23 (March 10, 2007).
253. "Reid: 'I Am at War with Your Country," CNN.com, January 31, 2003.
254. Wesley K. Clark and Kal Raustiala, Op-ed: "Why Terrorists Aren't Soldiers," New York Times, August 8, 2007.
255. Peter Finn, "Guantanamo Jury Sentences Bin Laden Aide to Life Term," Washington Post, November 4, 2008. Hicks was the dupe, Hamdan the driver, and al-Bahlul the default since he did not defend himself.
256. Gabor Rona, "Military Commissions: The Golden Rule and the Laws of War," 31 American Bar Association National Security Law Report (July/October 2009).
257. Ruling on Defense Motion to Suppress Out-of-Court Statements of the Accused to Afghan Authorities, United States v. Jawad, October 28, 2008.
258. Morris D. Davis, Op-ed: "AWOL Military Justice: Why the former Chief Prosecutor for the Office of Military Commissions Resigned His Post," Los Angeles Times, December 10, 2007.
259. William Glaberson, "Guantánamo Memo: In Detainee Trial, System Is Tested," New York Times, July 29, 2008.
260. Robert Chesney and Jack L. Goldsmith, "Terrorism and the Convergence of Criminal and Military Detention Models," 60 Stanford Law Review 1081, 1081 (2008).
261. Jack L. Goldsmith and Neal Katyal, Op-ed: "The Terrorists' Court," New York Times, July 11, 2007.
262. Kenneth Roth, "After Guantánamo: The Case against Preventive Detention," Foreign Affairs, May/June 2008, at 9, 12.
263. Andrew C. McCarthy and Alykhan Velshi, "We Need a National Security Court," American Enterprise Institute for Public Policy Research (2006).
264. Michael B. Mukasey, Op-ed: "Jose Padilla Makes Bad Law," Wall Street Journal, August 22, 2007.
265. McCarthy and Velshi, "We Need a National Security Court," 36.
266. Benjamin Wittes, Law and the Long War: The Future of Justice in the Age of Terror (New York: Penguin, 2008).
267. McCarthy and Velshi, "We Need a National Security Court," 13.
268. See David Cole, "Closing Guantánamo: The Problem of Preventive Detention," Boston Review, January/February 2009
269. David Cole, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," 97 California Law Review 693 (2009).
270. Kelly Moore, Symposium: "The Role of Federal Criminal Prosecutions in the War on Terrorism," 11 Lewis & Clark Law Review 837, 838-39 (2007).
271. Turner and Schulhofer, The Secrecy Problem in Terrorism Trials, 20-22.
272. Turner and Schulhofer, The Secrecy Problem in Terrorism Trials, 25.
273. Spencer J. Crona and Neal A. Richardson, "Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism," 21 Oklahoma City University Law Review 349, 382 (1996).
274. See, for example, Guiora and Parry, Debate: "Light at the End of the Pipeline?" 359.
275. William Glaberson, "Detainees, as Lawyers, Test System of Tribunals," New York Times, July 11, 2008.
276. Moore, Symposium: "The Role of Federal Criminal Prosecutions," 847.
277. U.S. Department of Justice, "Preserving Life and Liberty: The Record of the U.S. Department of Justice, 2001-2005.".
278. Deborah N. Pearlstein, "We're All Experts Now: A Security Case against Security Detention," 40 Case Western Reserve Journal of International Law 577, 584-85 (2009).
279. Moore, Symposium: "The Role of Federal Criminal Prosecutions," 848.
280. Daniel Benjamin and Steven Simon, The Age of Sacred Terror: Radical Islam's War against America (New York: Random House, 2003), xii-xiii.
281. Darius Rejali, Op-ed: "5 Myths about Torture and Truth," Washington Post, December 16, 2007.
282. Scott Shane, "Interrogations' Effectiveness May Prove Elusive," New York Times, April 22, 2009.
283. Daphne Eviatar, "OLC Torture Memos Were Based on Faulty Assumptions," Washington Independent, April 20, 2009.
284. Jason Leopold, "US Recants Claim on 'High Value' Detainee Abu Zubaydah," Truthout, March 30, 2010.
285. Matthew Alexander, How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (New York: Free Press, 2008).
286. Louise Richardson, What Terrorists Want: Understanding the Enemy, Containing the Threat (New York: Random House, 2006).
287. Lawrence Wright, The Looming Tower: Al Qaeda and the Road to 9/11 (New York:Random House, 2006), 54-56.
288. John Burgess, "Court Frees Moroccan Convicted in 9/11 Case," Washington Post, April 8, 2004.
289. "Barack Obama's Inaugural Address," New York Times, January 20, 2009.
290. Executive Order, "Ensuring Lawful Interrogations," January 22, 2009.
291. Executive Order, "Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities," January 22, 2009.
292. Executive Order, "Review of Detention Policy Options," January 22, 2009.
293. White House, Office of the Press Secretary, "Remarks by the President on National Security," May 21, 2009.
294. Eric Schmitt, "U.S. to Expand Detainee Review in Afghan Prison," New York Times, September 13, 2009.
295. U.S. Department of Defense, Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, July 2, 2009.
296. Jonathan Horowitz, "New Detention Rules Show Promise and Problems," Huffington Post, April 20, 2010.
297. Central Intelligence Agency, Inspector General, "Special Review: Counterterrorism Detention and Interrogation Activities (September 2001-October 2003)," May 7, 2004.
298. R. Jeffrey Smith, "Two Administrations Drew Different Lessons from 2004 CIA Report," Washington Post, August 25, 2009
299. Scott Horton, No Comment, "Seven Points on the CIA Report," Harper's, August 25, 2009.
300. U.S. Department of Justice, "Statement of Attorney General Eric Holder Regarding a Preliminary Review into the Interrogation of Certain Detainees," August 24, 2009.
301. Carrie Johnson, Jerry Markon, and Julie Tate, "Inquiry into CIA Practices Narrows; Ex-Agency Directors Urge Administration to Drop Investigation," Washington Post, September 19, 2009.
302. Scott Shane and Benjamin Weiser, "U.S. Drops Plan for a 9/11 Trial in New York City," New York Times, January 30, 2010.
303. Matthew Alexander, Op-ed: "Torture's Loopholes," New York Times, January 21, 2010.
304. Alissa J. Rubin, "Afghans Detail Detention in 'Black Jail' at U.S. Base," New York Times, November 29, 2009.
305. Charlie Savage, "Bill Targets Citizenship of Terrorists' Allies," New York Times, May 6, 2010
306. David Cole, "Bar to Expatriate Those Who Support Terrorists More Symbol Than Substance," Washington Post, May 8, 2010.
307. Charlie Savage, "Holder Backs a Miranda Limit for Terrorism Suspects," New York Times, May 9, 2010.