Category: Politics

April 27th, 2011

The Privilege of the Writ

“The Privilege of the Writ: The Supreme Court and Post-9/11 Detainee Habeas Corpus Entitlement” is a paper I wrote in 2010. In some ways it is a follow-up to my 2009 Kiyemba posts, Parts I and II. But mainly it’s a survey of Habeas Corpus law before and after 9/11. The full paper can be accessed on SSRN.

Abstract: Habeas corpus is the right to challenge one’s detention in a court of law. Prior to 9/11, habeas corpus jurisprudence erected a framework of entitlements that vary according to a person’s location, citizenship, and alleged crimes. Plotted on a timeline of American history, many of the landmark cases that progressively articulated this framework are clustered around wartime, and the entitlement conventions that obtained reflected the terminology of traditional warfare. After 9/11, as the nature of warfare and enemies evolved, and the Executive claimed unprecedented authority to detain enemy combatants, Guantanamo Bay became the extraterritorial detention facility of choice. Beginning in 2004, the Supreme Court responded with a series of cases that created a minimal but definite foundation of habeas corpus entitlement and due process for Guantanamo detainees. This article looks primarily at these post-9/11 cases, the traditional notions of habeas corpus upon which they are predicated, and the possible shortcomings they evidence relative to Guantanamo and to other extraterritorial detention facilities. Full text on SSRN.

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The Guantanamo detainee case Kiyemba v. Obama is a potentially landmark separation-of-powers case headed for the US Supreme Court in March 2010, with major policy issues and the futures of 13 detainees at stake. In this multi-part story, I will try to dig into the background and questions raised by the case. This is a follow-up to Part I: Jamal Kiyemba’s long journey home.

Part II: New borders

Judge A. Raymond Randolph wrote for the majority:

Seventeen Chinese citizens currently held at Guantanamo Bay Naval Base, Cuba, brought petitions for writs of habeas corpus. … The question is whether [they] are entitled to an order requiring the [US] government to bring them to the United States and release them here.

This opening paragraph of the decision by the DC Circuit Court of Appeals in February of 2009 introduced a document that dramatically altered the fate of those seventeen men. The men had previously been ordered by a lower court to be freed inside the United States, but the Executive branch appealed, saying the lower court had no such authority. Subsequently, the question that Judge Randolph introduced above was answered: no. No, the seventeen men will not be released into the United States, and unlike Jamal Kiyemba, they can not go home because they fear persecution by the Chinese government. There are thirteen of them now; four were released to Bermuda in June. They wait, still at Guantanamo Bay, for the slow wheels of American justice to make one final revolution as their case heads to the Supreme Court.

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The Guantanamo detainee case Kiyemba v. Obama is a potentially landmark separation-of-powers case headed for the US Supreme Court in March 2010, with major policy issues and the futures of 13 detainees at stake. In this multi-part story, I will try to dig into the background and questions raised by the case.

PART I: Jamal Kiyemba’s long journey home

Jamal Kiyemba doesn’t have anything to do with the case coming before the Supreme Court in 2010. He is a free man; he lives in Uganda, and as well as anyone might expect after what he went though, he is apparently leading a normal life there. But his full-circle journey, one that spanned four continents, is necessary prologue to the legal battle that wages on today under his name.

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Update 03.03.06: Article published on Kuro5hin.

A pending $5.8 billion port operation deal with Dubai Ports World has sparked acrimonious response from both sides of the aisle. Politicians are seizing on an opportunity to be tougher than the president on national security without much trepidation about ostricizing Arabs. Rhetoric abounds about the dangers to our borders, the security of our ports, the collapse of America as we outsource our labor to the UAE (and who the hell are they anyway?).

But it isn’t the Arabs you should fear. There is only one thing that politicians like more than scaring you and that’s money. The deep and sinister links between the Bush family, Carlyle Group and Dubai Ports World aren’t making the ten o’clock news, but don’t be fooled – this is just the latest way for Bush & Company to profit off of the “War on Terror”. Congress’ maligning of Arabs might suffice to derail the deal, but we still deserve to know what’s really going on.

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October 19th, 2005

Rumsfeld, Poet Laureate

Rumsfeld: Poet LaureateA few years ago, Slate magazine posted an article titled The Poetry of D.H. Rumsfeld which included several unmodified quotes from Donald Rumsfeld in poem form. Sublime and thought-provoking, Rumsfeld’s poetry invokes – with depth and the wisdom of experience – the modern global condition.

OK, not really. He’s just a big evil dumbass most of the time. But unlike his big evil dumbass boss, Rumsfeld is strikingly articulate in his perfected idiom of equivocation and obfuscation. I also believe his mastery of the dependent clause to be unrivaled among his poet-politician contemporaries. I also have to grant that occasionally his statements, though obtuse and seemingly nonsensical, are quite profound. For example, Slate’s first pick – “The Unknown” – quite accurately described the situation America faced in Iraq (nevermind that going to war based solely on a fourth and unmentioned type of knowledge – the “fabricated known” – wasn’t a very good idea).

Anyway, I have painstakingly searched through web publications of notable Rumsfeld speeches and through the annals of the Department of Defense transcripts archive to bring you more examples of this man’s poetic genius. Enjoy.

Directive 1011
What we’ve simply got to do is to,
When progress
Broke down
As it did,
Came to a dead stop

And we were prohibited from
Going forward, the
Various studies that were put in place, the
Independent analyses that were asked for, the
Assessments that were made
Have now been coming in and
As they have it will require
That they be put together,
Analyzed and then

A recommendation made to the Congress.

— 10.11.05, Dept. of Defense Town Hall Meeting, MacDill AFB, Florida

More below the fold …

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