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

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

by Jonathan Hafetz


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2012 American Bar Association Gavel Award Honorable Mention for Books

2012 Scribes Book Silver Medal Award presented by the American Society of Legal Writers

The U.S. detention center at Guantánamo 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, Guantánamo 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. Guantánamo 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.

Product Details

ISBN-13: 9780814724408
Publisher: New York University Press
Publication date: 08/20/2012
Pages: 331
Product dimensions: 8.80(w) x 5.90(h) x 0.90(d)

About the Author

Jonathan Hafetz is Associate Professor at Seton Hall Law School and has litigated numerous landmark habeas corpus detention cases. He also is the co-editor (with Mark Denbeaux) of The Guantánamo Lawyers: Inside a Prison Outside the Law (NYU Press, 2009).

Table of Contents

Acknowledgments ix

Introduction 1

Part 1

1 Laying the Foundation for the "War on Terror" 11

2 Guantánamo: Microcosm of a Prison beyond the Law 31

3 Guantánamo beyond Guantánamo: Toward a Global Detention System 46

4 Crossing a Constitutional Rubicon: The Domestic "Enemy Combatant" Cases 68

Part 2

5 Habeas Corpus and the Right to Challenge Unlawful Imprisonment 81

6 The Seeds of a Global Constitution 101

Part 3

7 A Modest Judicial Intervention: The First Supreme Court "Enemy Combatant" Decisions 117

8 The Battle for Habeas Corpus Continues 129

9 Tackling Prisons beyond the Law: Guantánamo Revisited 150

Part 4

10 Toward a Better Understanding of Habeas Corpus: Individual Rights and the Role of the Judiciary during Wartime 175

11 The Elusive Custodian: Some Potential Limits of Habeas Corpus 191

12 Terrorism as Crime: Toward a Lawful and Sustainable Detention Policy 205

13 Continuity and Change: The Detention Policy of a New Administration 238

Notes 259

Index 313

About the Author 323

What People are Saying About This

From the Publisher

“Deftly connecting Guantánamo to other secret prisons, law to politics, secrecy to terror, and the efforts of the courts to frame and reframe the ancient writ of habeas corpus for a modern era, Hafetz explores what was lost when habeas became a legal question as opposed to an answer. Anyone seeking a way forward on the issues of detention, incarceration, and the rule of law that continue to plague us would be well advised to start looking here for the answers.”

-—Dahlia Lithwick,Slate.com

“We all have snatches of the conversation in our heads: Guantánamo, habeas corpus, enemy combatant, military commissions, Bagram, rendition and torture. This book by one of the key lawyers on the front lines in the post-9/11 legal battles puts these pieces together; what emerges is not pretty. If you want to understand how a country that claimed it was the paradigm of fair treatment in its criminal justice system has tailored its laws to expediency, read this disturbing book."

-—Michael Ratner,President, Center for Constitutional Rights

“The right to habeas corpus is the linchpin of a free nation, and the post-9/11 attack on this safeguard is thus one of the most significant erosions of freedom in many decades. Jonathan Hafetz provides the most thorough account yet of why this right matters so much and what should be done to preserve it."

-—Glenn Greenwald,Salon.com

“Hafetz's incisive and insightful volume is more than just a summary of where we have been; it is an impassioned case for the proper way forward with regard both to the substance of national security detention policy and the role courts should play in reviewing and constraining it. Certain to become one of the indispensable accounts of the role that the ‘Great Writ’ has played both historically and after September 11, this book provides a powerful and timely testament to the foresight of the Founding Fathers in expressly enshrining the ‘privilege of the writ of habeas corpus’ in our Constitution.”

-—Stephen Vladeck,Professor of Law, American University


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