In lieu of an abstract, here is a brief excerpt of the content:

| 191 11 The Elusive Custodian Some Potential Limits of Habeas Corpus 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 to Guantánamo in early 2002 to Congress’s twice enacting legislation seeking to repeal habeas corpus and overturn Supreme Court decisions recognizing the Guantánamo detainees’ right to the writ. The desire to avoid habeas corpus also influenced the Bush administration’s decision to detain people at other, more remote and secret offshore prisons, from military facilities like Bagram to CIA-operated “black sites.” Even though the Bush administration went to extraordinary lengths to avoid habeas corpus, it was not the first, and it will not be the last, administration to try to escape accountability. The nature of terrorism, with its potential both to inflict death and destruction and to instill fear, can lead public officials to err on the side of security and secrecy rather than liberty and transparency. This is why recognizing that habeas corpus applies to all individuals in U.S. custody, regardless of where they are detained, is essential to preventing the creation of more prisons beyond the law or “new Guant ánamos.” But habeas corpus will always be vulnerable to those who want to circumvent it. Future administrations will seek to find new ways to avoid judicial review if they believe it is necessary to do so. One way of concealing responsibility is to claim that the prisoner is in the custody and control of another government. Another is to avoid detaining the prisoner altogether 192 | Potential Limits of Habeas Corpus and rendering him to another country for further detention and interrogation . Both were done after 9/11 and helped transform overseas detentions into a shell game in which prisoners were moved from one jail to another to escape judicial scrutiny. For a federal court to exercise habeas corpus jurisdiction, an individual must be in the custody or control of a U.S. official. The text of the habeas corpus statute authorizes courts to issue writs of habeas corpus only when an individual is “in custody under or by color of the authority of the United States” or “in violation of the Constitution or laws or treaties of the United States.”1 Habeas was not meant to address unlawful detentions by another government, and a U.S. judge has no authority to order a foreign official to release a prisoner, not even an American citizen. Habeas, in other words, does not make U.S. courts the world’s policemen for human rights violations. Instead, it is directed at imprisonment by, or at the behest of, U.S. officials (or state government officials, as the case may be). Detentions in the “war on terrorism” have thus posed significant challenges to habeas corpus review, not only because they have largely occurred outside the United States, but also because U.S. officials have often tried to conceal their role. In the CIA’s “black sites,” for example, the United States detained prisoners in secret. In the related practice of “ghosting,” the CIA and military intelligence detained prisoners at known Defense Department facilities, such as Bagram in Afghanistan and Abu Ghraib in Iraq, but hid the detainees’ existence, even from the ICRC. Proxy detention is another, more subtle way that the United States has masked its involvement. Here, the United States does not exercise formal or exclusive control over the prisoner but instead exercises varying degrees of control and influence through the intermediary of a foreign state. In some forms of proxy detention, physical custody is shared by the United States and a foreign government; in others, the United States may direct the detention without any physical involvement at all. And in the closely related practice of extraordinary rendition, the United States “outsources” the detention and interrogation to a foreign country, typically one that has both a close relationship with U.S. intelligence agencies and a record of torture.2 Secret detention and...

Share