Habeas Corpus after 9/11

Confronting America's New Global Detention System

Jonathan Hafetz

• Publisher: NYU Press
• Year: 2011
• ISBN:
  9780814773437
• Topic: Politics & International Relations
• Subtopic: Political Freedom
• Index: Politics & International Relations

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.

Part 1

1
Laying the Foundation for the “War on Terror”

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 plane was diverted by the passengers and crashed in a field in Pennsylvania. Nearly three thousand people died in the attacks, and the United States suffered untold trauma and billions of dollars in damages. Within days, responsibility had been attributed to al Qaeda and its leader, Osama bin Laden.¹ Al Qaeda’s ability to orchestrate a complicated attack within the United States shocked the country and seared into its collective conscience the fact that the oceans separating it from the rest of the world would not protect it from those who sought its destruction.²

Vice President Dick Cheney declared that “9/11 changed everything.”³ But it was the decisions made after that fateful day that had the most far-reaching consequences. On September 18, President George W. Bush signed into law the Authorization for Use of Military Force (AUMF), a congressional resolution authorizing him to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”⁴ Two days later, President Bush addressed a joint session of Congress, condemning the attacks as “an act of war against our country” and promising to bring the perpetrators—the terrorist organization al Qaeda—to justice. He also made clear that the Taliban, the government of Afghanistan, would be subject to retaliation for sheltering and harboring al Qaeda. Bush, however, did not stop there. He also described a military conflict of an apocalyptic nature that extended beyond any nation or single terrorist group. “Americans,” he said, “should not expect one battle, but a lengthy campaign, unlike any other we have ever seen.” That battle would be waged against enemies wherever they were and would “not end until every terrorist group of global reach has been found, stopped, and defeated.”⁵

Meanwhile, a coterie of high-level administration officials began laying the foundation for sweeping presidential powers in this new global “war on terrorism.” The group included the then White House counsel Alberto R. Gonzales, Cheney’s legal adviser and longtime aide David S. Addington, Pentagon general counsel William J. Haynes II, and John Yoo, a thirty-four-yearold lawyer in the Department of Justice’s Office of Legal Counsel (OLC), the office that provides legal advice to the executive branch and whose opinions bind executive agencies.⁶ Together, these men would help create the conceptual and legal architecture for this “new type of war.”⁷

Yoo became one of the most important—and vocal—proponents of sweeping executive power. In a September 25, 2001, memo, Yoo described the president’s paramount role in protecting the nation through the use of military force. The decision whether to use armed force abroad, as well as the amount of force to be used, Yoo insisted, fell within the president’s “sole constitutional authority.” He claimed his theories were grounded in the tradition of a strong executive that dated back to Alexander Hamilton. Yoo also pointed to more recent precedents in which presidents had ordered military strikes in response to terrorist attacks: President Bill Clinton in Afghanistan and Sudan in 1998 and President Ronald Reagan in Libya in 1986. Besides maintaining that Congress had given President Bush power to wage war against terrorism under the AUMF, Yoo also claimed that the president inherently possessed this power by virtue of his role as commander in chief under Article II of the U.S. Constitution. He further asserted that Congress could not impose any limits on the president’s power to use military force to defend the nation.⁸

In another OLC memo, Yoo wrote that the president could deploy the military against suspected terrorists within the United States, with or without congressional approval.⁹ In doing so, Yoo said, the president would not be bound by the Fourth Amendment to the Constitution, which prohibits searches and seizures without a warrant or probable cause, since that amendment does not apply to the military during wartime. The president would thus have unfettered discretion to set up checkpoints in an American city, raid or attack dwellings, use deadly force against individuals, and suspend First Amendment freedoms of speech and press. The Posse Comitatus Act, on the books since 1878, prohibited the military from engaging in domestic law enforcement.¹⁰ But Yoo’s memo sought to emasculate that act and circumvent limits on using the armed forces inside the United States by redefining terrorism broadly as a “military matter.”

Notwithstanding these assertions of virtually limitless presidential power, U.S. detention policy remained largely unchanged during the first months after September 11. Two high-profile federal cases suggested that the Bush administration might continue to treat terrorism as a crime subject to prosecution in civilian court rather than through the president’s war powers. The first case involved John Walker Lindh, an American citizen who had been captured in a military raid in Afghanistan in December 2001. Lindh was charged three months later in federal court in Virginia for his alleged role in the death of a CIA officer killed during fighting in Afghanistan. The second involved Zacarias Moussaoui, initially believed to be the replacement for the “twentieth hijacker”—the person who failed to board the plane that crashed in Pennsylvania on 9/11. Moussaoui had been arrested by immigration officials in Minnesota in August 2001 and was indicted on terrorism charges in Virginia four months later.

Congress, meanwhile, had enacted new counterterrorism legislation, commonly known as the “Patriot Act.”¹¹ Passing by wide margins in both houses six weeks after 9/11, the Patriot Act expanded law enforcement’s authority to investigate and prosecute suspected terrorists. For example, the act loosened restrictions on electronic surveillance and on the use of pen register or trapand-trace devices that identify the source and destination of telephone and Internet communications.¹² It also broadened the use of “national security letters,” an administrative subpoena that permits the FBI to compel the disclosure of telephone, e-mail, and financial records without a court order. Another provision authorized officials to conduct secret “sneak and peak” searches of suspects’ homes without notifying them.¹³ In addition, the Patriot Act increased the government’s authority to obtain personal records, including lists of books that people borrow from libraries or purchase at bookstores, by certifying it was conducting an investigation to obtain foreign intelligence information or to protect against international terrorism.¹⁴ Besides enhancing the government’s investigative powers, the Patriot Act strengthened existing criminal statutes, including expanding the reach of existing laws against providing material support to terrorists and widening the definition of “domestic terrorism” to apply to groups targeting the United States or attempting to influence U.S. policy through threats and coercion.¹⁵ Although the Patriot Act has been rightly criticized for curtailing civil liberties, it still operated within a legal framework that subjected the government to some limitations and oversight and continued to treat terrorism predominantly as a law enforcement problem.

Nonetheless, a different approach was taking shape beyond the public’s view. After John Walker Lindh’s capture, his parents retained defense attorney James Brosnahan to represent him. Brosnahan immediately contacted high-level U.S. officials to inform them that he was representing Lindh and wanted to meet with him. For the next two months, Brosnahan’s requests were refused, even though Lindh repeatedly asked to speak to a lawyer. All this while, Lindh was held incommunicado and interrogated by U.S. officials. Letters from Lindh’s parents to their son were blocked. Lindh was blindfolded, tied to a stretcher with duct tape, held in a freezing dark cell while naked, and deprived of sleep and food. In an effort to extract a confession through force, top Pentagon officials instructed interrogators to “take the gloves off.”¹⁶ Ultimately, the confession extracted from Lindh through brutal interrogation sessions served as the basis for his prosecution. Meanwhile, Justice Department attorneys who raised concerns about Lindh’s treatment were ignored or discredited.¹⁷ When Lindh’s lawyers prepared to challenge the validity of his confession in open court, prosecutors offered a last-minute deal that would shield Lindh’s abuse from scrutiny by allowing Lindh to plead guilty to one of ten charges and serve a twenty-year sentence rather than face the death penalty.¹⁸ Lindh accepted, fearful of a jury’s response in the emotionally charged atmosphere after 9/11.

Some administration officials believed that Lindh’s case showed why the criminal justice system should not be used to handle suspected terrorists. In their view, the problem was that criminal prosecutions were incompatible with secrecy, incommunicado detention, and coercive interrogation and thus were ill suited for the challenges presented by the current terrorist threat. Involving lawyers and courts made it more difficult to engage in harsh interrogations, to justify detention without evidence, and to conceal mistakes. A new approach—or “new paradigm,” as President Bush called it—was needed. That paradigm substituted indefinite military detention and possible prosecution in military tribunals for the requirement that individuals suspected of terrorism or other wrongdoing be charged and tried in the regular criminal courts. It also embraced torture and other abusive interrogation methods and spurned the rules that had long governed the conduct of war, including the Geneva Conventions, U.S. military regulations, and customary international law. In late 2001 and early 2002, the Bush administration made a series of decisions laying the legal groundwork for this new paradigm. These decisions helped define the post-9/11 era and pave the way for an unprecedented global detention system outside the law.

• • •

On October 7, 2001, the United States commenced Operation Enduring Freedom, launching its first military strikes against Afghanistan. This military campaign sought to target al Qaeda and to punish the Taliban for supporting and harboring it. The United States was aided by other members of NATO and by the Afghan Northern Alliance, an umbrella group of mujahideen, who provided the bulk of the armed forces on the ground. At first, the U.S.-led military invasion of Afghanistan resembled past armed conflicts more than the new kind of war that President Bush had described in speeches. It began with air strikes against cities, al Qaeda training camps, and Taliban air defenses and was followed by a ground offensive by U.S. and allied troops. Soon, however, the intervention in Afghanistan departed from these earlier military campaigns when the Bush administration jettisoned the legal rules that applied to armed conflict in order to evade any restrictions on the detention and treatment of those it captured.

These rules commonly known as “international humanitarian law” (or the “law of war”), are divided into two branches. The first branch, known as jus ad bellum, is concerned with the legitimacy of the resort to armed force. The second, jus in bello, provides a legal framework for an armed conflict already in progress. It is derived from international treaties ratified by individual countries as well as binding customary law. This branch includes the Hague Conventions of 1899 and 1907, which address the methods and means of warfare and seek to mitigate the harm and violence beyond that necessary to achieve the military goal by, for example, codifying the principle that military organizations may lawfully attack only targets of military value.¹⁹ It also includes the Geneva Conventions. First drafted in Geneva, Switzerland, in 1864 and last revised in 1949, the Conventions have been ratified by every country in the world and thus enjoy universal acceptance. The Conventions together set forth rules governing the detention, interrogation, and release of prisoners by individual states. Each of the four Conventions provides rules for a different category of prisoners. The two best known are the Third Geneva Convention, which regulates the treatment of enemy prisoners of war, and the Fourth Geneva Convention, which applies to civilians (or noncombatants).²⁰ Under the Geneva Conventions, a nation can hold enemy soldiers for the duration of the conflict, but prisoners cannot be mistreated under any circumstances. To the contrary, prisoners of war “must at all times be treated humanely” and “protected . . . against acts of violence or intimidation.”²¹ They also must be “released and repatriated without delay after the cessation of active hostilities.”²² Civilians enjoy similar protections against abuse and mistreatment as well as restrictions on their continued detention and the guarantee of a fair trial if they are prosecuted for any crimes they commit during the armed conflict.

The Geneva Conventions recognize that some individuals will not qualify for prisoner-of-war status because, for example, they are not members of the armed forces of a party to the conflict, or they are part of a militia or volunteer corps that does not operate under an organized command structure, carry its weapons op...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part 1
• Part 2
• Part 3
• Part 4
• Notes
• Index
• About the Author