Host, Dahlia Lithwick:
Just a few years ago, the national debate over the prison camp at Guantanamo Bay, indefinite detention, secret renditions and other legal elements of the Bush Administration’s “War on Terror” happened openly in American courtrooms and in the daily newspapers. Increasingly, those debates have receded into the rearview mirror as we content ourselves with the illusion that these issues are no longer urgent, or no longer affect us. In his thoughtful new book, Habeas Corpus After 9/11, Professor Jonathan Hafetz of Seton Hall University School of Law, reminds us that these and other legal innovations in the War on Terror are neither resolved, nor isolated, nor benign. We are still living in the legal universe that was constructed on the fly after 9/11. We just don’t want to admit it.
Hafetz has been on the front lines of the fight to restore the rule of law for years now. In 2007, I covered his oral argument at the Fourth Circuit Court of Appeals when he represented Ali Saleh Kalah al-Marri, a US resident who was designated an “enemy combatant” and held for over five years in a military prison without charges. In his new book, Hafetz offers an argument for restoring the role of habeas corpus as a check on the kinds of limitless government detention powers asserted after 9/11, and still largely in effect today. He explains that the camp at Guantanamo did not operate in isolation, but was part of a sprawling and interconnected global detention system that includes facilities at Bagram Air Base, secret CIA prisons and “black sites” deployed for the torture and rendition programs. The Bush Administration gave itself permission to build this new legal universe by shifting from a crime paradigm to a “war paradigm” and in so doing, it sought to constrain the role of courts in assessing the rights and treatment of US prisoners. The Obama Administration has, as Hafetz explains, done little to roll back the Bush-era changes to the legal world after 9/11. Having pledged on assuming office to close Guantanamo, Obama has not only kept the camp open but adopted many key features of the Bush paradigm on fighting the endless and border-less “War on Terror.”
Habeas Corpus After 9/11 is divided into four sections. The first four chapters lay out the contours of the global detention system created post-9/11, and the legal underpinnings that brought it into being. The second part of the book explores the meaning of habeas corpus – its historical antecedents and the ways it came to be used in wartime, and the ways it’s been whittled away after 9/11. The third section of the book looks at the tension between the writ of habeas corpus and the government’s wartime goals, by examining the trilogy of major enemy combatant cases decided by the Supreme Court, and the responses to those decisions by both the legislative and executive branches. And the fourth section of the book looks to the future and how we can fix this mess; outlining a detention system that balances future American security needs against a meaningful right to habeas corpus and judicial oversight. This book is a reminder that habeas corpus isn’t known as the “Great Writ” just because it’s awesome. This ancient writ is the bulwark against precisely the kinds of indefinite detention, abuse, and secrecy that have been carelessly threaded into the fabric of the American detention system in the past ten years. We are so lucky to have him with us to discuss issues that are as vitally important today as they were in the 14th century. And I am honored to be asked to participate.
[As a courtesy to our guests, please keep comments to the book. Please take other conversations to a previous thread. - bev]