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Habeas Corpus after 9/11

Confronting America’s New Global Detention System

Jonathan Hafetz, 0, 0

Publication Year: 2011

“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.—

Published by: NYU Press

Front Matter

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pp. vii-viii

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pp. ix

First I would like to thank the Brennan Center for Justice at New York University School of Law, my professional home for three years, which generously provided me with the opportunity and the support to write this book. My thanks also to Baher Azmy, Emily Berman, Mark Denbeaux, Eric Freedman, Frederick Hafetz, Aziz Huq, Joe Margulies, Gabor Rona, and ...

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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. ...

Part 1

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pp. 9-10

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1. Laying the Foundation for the “War on Terror”

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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 ...

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2. Guant

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pp. 31-45

On January 11, 2002, the first twenty prisoners arrived at Guant

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3. Guant

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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 ...

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4. Crossing a Constitutional Rubicon: The Domestic “Enemy Combatant” Cases

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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 ...

Part 2

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pp. 79-80

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5. Habeas Corpus and the Right to Challenge Unlawful Imprisonment

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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 ...

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6. The Seeds of a Global Constitution

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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 ...

Part 3

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pp. 115-116

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7. A Modest Judicial Intervention: The First Supreme Court “Enemy Combatant” Decisions

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pp. 117-128

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 corpus review, the Court would insulate the worst forms of illegal detention and abuse from judicial scrutiny. The U.S. solicitor general, Paul D. Clement, had sought to assuage this concern, ...

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8. The Battle for Habeas Corpus Continues

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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 ...

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9. Tackling Prisons beyond the Law: Guant

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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 ...

Part 4

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pp. 173-174

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

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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 ...

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

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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 ...

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

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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 ...

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

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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 ...


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pp. 259-312


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pp. 313-322

About the Author

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E-ISBN-13: 9780814773437
E-ISBN-10: 0814773435
Print-ISBN-13: 9780814737033
Print-ISBN-10: 081473703X

Page Count: 352
Publication Year: 2011

Research Areas


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Subject Headings

  • Guantánamo Bay Detention Camp.
  • Terrorism -- United States -- Prevention.
  • Combatants and noncombatants (International law).
  • Detention of persons -- Cuba -- Guantánamo Bay Naval Base.
  • Detention of persons -- United States.
  • Habeas corpus -- United States.
  • Prisoners of war -- Legal status, laws, etc. -- Cuba -- Guantánamo Bay Naval Base.
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