The 9/11 Commission’s Tenth Anniversary Report Card was issued this week (PDF); the brief document reported on the lack of progress the U.S. has made since the Commission’s original report in 2004. The update helpfully informed Americans that we should continue to fear the terrorists, that we should implement even more invasive TSA procedures at the airport, and that we need better walkie-talkies. These have been topics of much debate in the media. My interest in the document, however, was content related to detainee rights: would the Commission hold the administration accountable for failing to implement reasonable and lasting policy on “War on Terror” detainees?
While crediting the Obama administration with better aligning Guantanamo policy to Geneva Convention norms, the Commission largely gave a failing grade to overall U.S. policy. And they are right to do so. Taking a look back at the Commission’s original recommendation, it is clear that outside of some minimal detainee rights, all of which flowed from Supreme Court decisions, the U.S. government has not acted on this recommendation.
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“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.
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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