Welcome Jonathan Hafetz, and Host Dahlia Lithwick (Slate.com).

Habeas Corpus after 9/11: Confronting America’s New Global Detention System

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]

119 Responses to “FDL Book Salon Welcomes Jonathan Hafetz, Habeas Corpus after 9/11: Confronting America’s New Global Detention System”

BevW July 10th, 2011 at 1:58 pm

Jonathan, Dahlia, Welcome back to the Lake.

Dahlia, Thank you for Hosting today’s Book Salon.

Jonathan Hafetz July 10th, 2011 at 2:00 pm

Thanks. Great to be with you

Dahlia Lithwick July 10th, 2011 at 2:01 pm

So wonderful to be here and so looking forward to Jonathan’s thoughts

Dahlia Lithwick July 10th, 2011 at 2:02 pm

Jonathan, I wondered if you wanted to address the news briefly of the Obama Administration’s handling of Ahmed Abdulkadir Warsame? Here’s a link to an LA Times piece about it http://articles.latimes.com/2011/jul/07/news/la-pn-somali-terrorist-reax-20110707

Dahlia Lithwick July 10th, 2011 at 2:03 pm

And if you have any thoughts, too, about Marc Thiessen’s column about what he terms President Obama’s “Catch and Release” policy regarding terrorists? http://www.washingtonpost.com/blogs/post-partisan/post/obamas-terrorist-catch-and-release-policy/2011/07/06/gIQALpxb0H_blog.html

Dahlia Lithwick July 10th, 2011 at 2:06 pm

Also, just for a habeas-icebreaker, would you update us on the current state of closing — or not closing — the camp at Guantanamo, something the President pledged to do only two days after his inauguration?

Jonathan Hafetz July 10th, 2011 at 2:06 pm

While I’m happy the Obama administration chose to prosecute Warsame in federal court, rather than transfer him to Guantanamo or otherwise hold him outside the U.S. justice system, there are several things that concern me. One is the length of time Warsame was held (approximately two months) before he was charged, the asserted legal basis for holding him, and the conditions he was held under. Another broader concern is how much things have changed since 9/11. Ten years ago, the answer would have been clear–bring the suspected terrorist to the US for prosecution. Today, that is only an option, and one the government is criticized by many, especially on the Right, for exercising.

bmaz July 10th, 2011 at 2:06 pm

O hello two wonderful people and welcome! Jonathan, thanks for the superb book, and Dahlia, thank you for hosting; I am really looking forward to today’s discussion.

emptywheel July 10th, 2011 at 2:07 pm

What a treat! Jonathan AND Dahlia at FDL!

BevW July 10th, 2011 at 2:07 pm

As a technical note, there is a “Reply” button in the lower right hand of each comment. Pressing the “Reply” will pre-fill the commenter name and number you are replying to and helps for everyone in following the conversation.

(Note: If you’ve had to refresh your browser, Reply may not work correctly unless you wait for the page to complete loading)

Dahlia Lithwick July 10th, 2011 at 2:08 pm
In response to emptywheel @ 9

the treat is all mine I assure you.

Jonathan Hafetz July 10th, 2011 at 2:09 pm

In my book, I was cautiously optimistic about Guantanamo. It looked as if Obama would indeed close it, although questions remained about whether the underlying legal architecture–namely, indefinite detention and military commission prosecutions–would remain. Now, however, the plan for closing Guantanamo is dead–a consequence of the administration’s failure to lead and a relentless political backlash. Sadly, while some additional prisoners have been released, we are much further from closing Guantanamo than after Obama’s inauguration.

Jonathan Hafetz July 10th, 2011 at 2:09 pm
In response to Dahlia Lithwick @ 6

In my book, I was cautiously optimistic about Guantanamo. It looked as if Obama would indeed close it, although questions remained about whether the underlying legal architecture–namely, indefinite detention and military commission prosecutions–would remain. Now, however, the plan for closing Guantanamo is dead–a consequence of the administration’s failure to lead and a relentless political backlash. Sadly, while some additional prisoners have been released, we are much further from closing Guantanamo than after Obama’s inauguration.

emptywheel July 10th, 2011 at 2:10 pm

I want to add to Dahlia’s question about Warsame with one about Glenn Carle’s book, The Interrogator (we hosted Carle yesterday).

The detainee he writes about is Pacha Wazir, who was the fourth detainee along w/Fadi al Maqeleah et al who sued for habeas at Bagram.

Bates dismissed his suit bc he’s an Afghan citizen.

But at the same time, Karzai and other Afghan leaders were calling for his release. And now we find out–with Carle’s book–that someone in the CIA determined in 2003 that Wazir was not who we said he was.

How was it possible, first of all, for the US to simultaneously deny his habeas AND ignore–or stall–ultimately the Karzai appeal worked–the “sovereign” Afghan president’s calls for his release?

And is there any way to make a stink about the habeas issue on this front (aside from the one I plan on making tomorrow)?

Dahlia Lithwick July 10th, 2011 at 2:11 pm

How much of that, Jonathan, do you attribute to what you describe as the “new normal” in the book — the idea that we have moved so far from what was unthinkable even to the Bush Administration (no trials for Richard Reid the shoe bomber . . . )? Do you envision the pendulum ever swinging back or is this all a one-way ractchet?

PeasantParty July 10th, 2011 at 2:13 pm
In response to emptywheel @ 14

Excellent question!

Dahlia Lithwick July 10th, 2011 at 2:14 pm

You describe the three big enemy combatant cases that shape so much of the current enemy combatant doctrine. Do you think the Supremes will ever take another such case?

emptywheel July 10th, 2011 at 2:14 pm
In response to Jonathan Hafetz @ 7

Have you looked at Charlie Savage’s article, reporting that he was held under AUMF on the claim that al Shabaab leaders who “might” attack outside of Somalia (but not necessarily in the US) came under the AUMF?

What do you think the right approach for rule of law people to take vis a vis efforts to rewrite the AUMF?

Jonathan Hafetz July 10th, 2011 at 2:14 pm
In response to emptywheel @ 14

This is yet another troubling story to emerge from US detentions at Bagram. As to the habeas, the US courts have thus far determined thatnodetainee at Bagram has a right to challenge his detention by US officials in a US court. Thus, no court could hear the merits of Wazir’s claim, and errors like this could be buried or go uncorrected. At the same time, Bagram detainees have no right to challenge their detention in an Afghan court. While the military procedures have improved somewhat under Obama, Bagram remains a form of extra-judicial detention.

emptywheel July 10th, 2011 at 2:14 pm

Don’t you (and Jonathan) think SCOTUS has abdicated such rulings to the very conservative folks on the DC Circuit?

Dahlia Lithwick July 10th, 2011 at 2:16 pm
In response to emptywheel @ 20

I do — and I think the Court has in every way just moved on

bmaz July 10th, 2011 at 2:17 pm
In response to Jonathan Hafetz @ 7

The only tangible nexus (at least until a defense demand for a bill of particulars) between Warsame and the US delineated in the indictment appears to be “conspiracy” with a “US national”. My theory, as yet unrebutted by anyone (including DOJ I might add) is that the US national is Anwar Awlaki, and all the information seems to be that they talked, but no indication of any overt act tie in. If this turns out to be true and there are neither overt nor attendant acts committed in the US, against the US or its citizens and/or direct interests – would you still support jurisdiction in Article III courts, to wit SDNY?

Jonathan Hafetz July 10th, 2011 at 2:17 pm

At this point it is difficult to imagine the pendulum swinging all the way back. I think the notion that, given the dangers of terrorism, some individuals may be held without the protections of the US criminal justice system, has gained a secure foothold. At this point, it shows no sign of retreating but only of expanding. Note, for example, the current legislative proposals that would mandatethe military detention of certain terrorism suspects, subject to a national security waiver by the Secretary of Defense.

bmaz July 10th, 2011 at 2:18 pm
In response to emptywheel @ 20

Don’t you (and Jonathan) think SCOTUS has abdicated such rulings to the very conservative folks on the DC Circuit?

YES!

Jonathan Hafetz July 10th, 2011 at 2:19 pm

The Supreme Court’s failure to take another case since Boumediene in 2008, and to allow so much of that decision to be gutted by the DC Circuit (the intermediate federal appeals court), is discouraging. That said, the Supremes have suggested they may take another case if the facts are right (as the case of the Uighurs illustrates–the Court was going to hear that case and, I believe, reject the D.C. Circuit’s argument that a judge can never order the release of a Guantanamo detainee, before the Obama administration found countries to which those particular detainees could be repatriated.

bmaz July 10th, 2011 at 2:20 pm

Which is shocking since Tony Kennedy penned Boumediene and now less than 3 years later refuses to so much as desire cert to defend it.

Jonathan Hafetz July 10th, 2011 at 2:22 pm
In response to emptywheel @ 18

The Warsame case illustrates the malleability of the AUMF and applying a war paradigm generally to terrorist groups (as opposed to state actors). Given the nature of terrorism, the asserted powers become hard to cabin. Given the current climate, the best we can hope for is that AUMF-based powers remain tethered to al Qaeda ndd the 9/11 attacks.

Dahlia Lithwick July 10th, 2011 at 2:22 pm

Jonathan are there any ways that you see the Obama Administration pushing back on these issues — beyond those detailed in the book? Or is this a battle that is over, following the KSM debacle?

Dahlia Lithwick July 10th, 2011 at 2:24 pm
In response to bmaz @ 27

does he doubt he has the votes? Or was Stevens just an irreplaceable leader on this issue?

bmaz July 10th, 2011 at 2:25 pm

Yes the disingenuous case & controversy/jurisdictional three card monte game popularized under Bush continues, as do so many things, under Obama.

Jonathan Hafetz July 10th, 2011 at 2:26 pm
In response to bmaz @ 27

We should also remember that since 9/11 the Supreme Court has declined to decide important questions, most notably, the scope of AUMF detention power and the legitimate definition of “enemy combatant” (or “unprivileged enemy belligerent” in Obama-speak). This has allowed other actors–esp the political branches and DC Circuit–to fill the vacuum. Plus remember the Court’s failure to allow damages actions to proceed for any victims of abuse during interrogations by military or CIA officials.

Jane Hamsher July 10th, 2011 at 2:27 pm

Thank both of you so much for being here today.

For either Dahlia or Jonathan — Jonathan, say that:

At this point it is difficult to imagine the pendulum swinging all the way back.

Are you speaking strictly in terms of momentum, or are there structural reasons why this is happening? Are there powerful incentives within the system that urge it in the direction of ratcheting up, or do you think this is the long tail of 9/11? Or some combination of both?

Dahlia Lithwick July 10th, 2011 at 2:27 pm

unanimous

bmaz July 10th, 2011 at 2:28 pm

I honestly do not know; but in light of the fact that no cert was the functional equivalent of a substantial evisceration of his decision, it is pretty weak either way. If his handiwork was to be hollowed, if Kennedy believed in it he could at least desire cert to dissent. Only my .02 worth understand you.

Jonathan Hafetz July 10th, 2011 at 2:29 pm

The KSM-reversal, in my opinion, was the single most important failure of the Obama administration. Here was a case that cried out for trial in federal court. When the Obama administration failed to fight for it, it was a powerful sign of weakness, a sign that he would not fight for the rule of law. The administration absolutely must fight against the current proposal that would mandate military detention of certain terrorism suspects–a move that is more radical than anything proposed during the Bush administration.

Jane Hamsher July 10th, 2011 at 2:31 pm

And in case anyone wants to tweet about this great discussion:

http://twitter.com/#!/janehamsher/status/90171069838786560

Now: @Dahlialithwick chats w Jonathan Hafetz re his new book Habeas Corpus after 9/11 on FDL Book Salon: http://t.co/SWeYKFD @firedoglake

Dahlia Lithwick July 10th, 2011 at 2:31 pm
In response to Jane Hamsher @ 33

My cynical answer is that people will always be more afraid than not. See, eg March 2010 CNN poll finding that only 39 percent of Americans thought that Guantanamo should be closed. See massive shift in public acceptance of torture. Jonathan talks about how the Abu Ghriab photos changed everything, but I think the shock and outrage had a very limited shelflife.

Jonathan Hafetz July 10th, 2011 at 2:31 pm

The loss of Stevens was key. Kagan has also recused herself from several post-Boumediene cert petitions. Plus, besides the Uighurs (where the Court did grant cert), I don’t think there’s been a terrific vehicle yet.

emptywheel July 10th, 2011 at 2:33 pm

What do you make of NYPD’s (and Ray Kelly’s involvement in) the Warsame indictment.

Much as I have a bad feeling about aspects of that indictment, at some levels it looks like it was crafted politically to get over the problems that blew up the KSM trial.

Jonathan Hafetz July 10th, 2011 at 2:33 pm

I agree. And I think that once Obama was elected, and made bold statements against torture and about restoring the rule of law, people felt the issues had been dealt with. It also makes me wonder how much of the outrage over Guantanamo was a way of expressing outrage over President Bush.

Dahlia Lithwick July 10th, 2011 at 2:34 pm

I agree, although the failure was almost completely political I think — a failure to message and a failure to garner crucial supporters.

Jonathan Hafetz July 10th, 2011 at 2:35 pm
In response to emptywheel @ 40

That’s an excellent point. The administration really failed to lay the groundwork with KSM. (KSM should already ahve been in NY when they announced the indictment).

bmaz July 10th, 2011 at 2:36 pm

Right; but Kennedy plus the three remaining members of the “liberal” bloc would have gotten cert. Still likely a 4-4 deadlock; but a 4-4 with strong opinion by Kennedy better than leaving the DC Circuit Kiyemba stand unadressed. Or maybe I am nuts…..

Dahlia Lithwick July 10th, 2011 at 2:37 pm
In response to Jane Hamsher @ 33

and of course the fact that there hasnt been another 9/11 now stands for the unfalsifiable proposition that the government response to 9/11 somehow “worked.” Its one of the many unfalsifiable propositions (Gitmo “worked.” Torture “worked”) that have created the one-way ratchet

emptywheel July 10th, 2011 at 2:38 pm

Well, not just presenting the GOP with a fait accompli on Warsame’s presence in NYC, but also coopting Kelly as a way to ensure he’d all of a sudden get behind terror trials in NYC now.

Though I fear the pre-trial period for Warsame may get dragged out past the litigation on the restrictions on civilian trials.

Jonathan Hafetz July 10th, 2011 at 2:40 pm
In response to bmaz @ 44

That would have been preferable. As long as Kiyemba stands, district judges believe they have no authority to order a prisoner’s a release nor to affect the repatriation process other than encouraging the gov’t to use it’s “best efforts.” The other problem is that, given the recent string of DC Circuit decisions, it has become very difficult for any petitioner to win and thus even get to the stage where Kiyemba matters.

Dahlia Lithwick July 10th, 2011 at 2:40 pm

Jonathan has there been much blowback to your proposals for reform at the end of the book?

geoshmoe July 10th, 2011 at 2:41 pm

the best we can hope for is that AUMF-based powers remain tethered to al Qaeda ndd the 9/11 attacks.

What exactly was the evidence, that it was al Qaeda and their goat herder friends in Afghanistan what did the 911 attack, wasn’t that mostly a theory?
Or if the “suspects” are so dangerous that they can’t be apprehended and held normally with “Miranda” and habeous corpus, and get a normal trial out in the open, then the case must not be all that strong. What is the real reason for all the extry legal stuff, and gulag archepeligo system?

bmaz July 10th, 2011 at 2:42 pm

Yeah, that plus the about face on state secrets/privacy invasion liability.

Dahlia Lithwick July 10th, 2011 at 2:43 pm

Jonathan do you really think that the public felt that Obama’s statements about restoring the rule of law ended the subject? I think most of them simply felt terrified at the prospect of closing Gitmo and housing terrorists in their backyards?

Jonathan Hafetz July 10th, 2011 at 2:43 pm

Not a lot (though, not surprisingly, Ben Wittes disagreed with them). Then again, no one is rushing to adopt them.

emptywheel July 10th, 2011 at 2:45 pm

Thus far, the US has succeeded in pressuring every other govt that has considered a review of US CT detention to drop the inquiry (and the British inquiry is being exposed as a big whitewash).

Is there anyway you see pressure coming to bear internationally that might make us return to real habeas reviews–for example in Afghanistan–as a tradeoff?

Jonathan Hafetz July 10th, 2011 at 2:46 pm

Part of it was NIMBY syndrome. I also think some people were getting tired of hearing about Guantanamo and were eager to believe the problem was being addressed. In addition, Obama’s failure to close Guantanamo (despite a stated desire to do so) has made people believe that Guantanamo is perhaps necessary after all.

Dahlia Lithwick July 10th, 2011 at 2:47 pm
In response to bmaz @ 50

The state secrets reversal is arguably more awful because it is premised on the indefensible idea that if we all just turn the page and move forward everything will revert to pre-9/11 on its own. As Jonathan’s book illustrates, that is not happening

Jonathan Hafetz July 10th, 2011 at 2:48 pm
In response to emptywheel @ 53

Not sure. More int’l pressure may help at the margins. Pressure from host state (Afghanistan) would help.

emptywheel July 10th, 2011 at 2:49 pm

I don’t even think that’s it. My gut feel on the proposed MI prison was that there wasn’t much real opposition, aside from what Crazy Pete Hoekstra could drummed up artificially. MI needed the jobs! Plus, we’re not as worried about scary Muslims and Arabs as some states, given that we’ve got a big population of them.

I mean, the Undie Bomber has been in a low security prison about 40 minutes from Detroit for over a year now, and no one has thought twice of it.

Jonathan Hafetz July 10th, 2011 at 2:51 pm

The absence of accountability–whether through lawsuits or criminal investigations–has had the cumulative effect of implicitly sanctioning the abuses that occurred after 9/11

emptywheel July 10th, 2011 at 2:52 pm
In response to emptywheel @ 57

And I should say, one of the things the Admin appears to have done is kept the info on a prison from Levin, in spite of his position as SASC Chair, at a time when his support might have countered CrazyPete.

Dahlia Lithwick July 10th, 2011 at 2:52 pm
In response to emptywheel @ 57

I cant think of another reason — outside NIMBYness — to explain how a proposition that was uncontroversial in 2002, that we convict and hold terrorists in American courts and jails, has become unthinkable.

Daphne Eviatar July 10th, 2011 at 2:52 pm
In response to Jonathan Hafetz @ 7

Hi Jonathan, and congrats on the book! The Warsame case is the perfect example of how far this whole debate has shifted to the right — the “new normal” you talk about — b/c now we’re seeing many who would in the past have been furious at the idea of 2-3 months secret detention and interrogation on a ship before an indictment afraid to criticize the Obama administration b/c of the even worse situation Congress may create, by banning federal court prosecutions of suspected terrorists altogether. A very disturbing state of affairs.

Dahlia Lithwick July 10th, 2011 at 2:55 pm

Jonathan what type of accountability might have remedied that do you think? Truth Commission? Criminal trials? In hindsight what might Obama have done to de-legitimize the post 9/11 legal regime?

Jonathan Hafetz July 10th, 2011 at 2:55 pm
In response to Daphne Eviatar @ 61

The situation has become so highly politicized. I don’t recall much if any criticism when Bush brought other suspected terrorists connected to Somalia to federal court for prosecution.

Dahlia Lithwick July 10th, 2011 at 2:57 pm

Do you think most Americans still believe that Gitmo housed the “worst of the worst” or has it become clear yet that these were the “shot in the butt” folks?

bmaz July 10th, 2011 at 2:57 pm

Alrighty then; let me actually branch this shindig out just slightly. Jonathan, and this kind of fits in with Part 2 of your book, there has been both in the various litigations, and here today even, healthy discussion of what this attack on Habeas means in the detainee/terrorism arena, which is critical.

But as someone who still occasionally has to defend traditional criminals in general crimes in both Article III and state level courts, what do you think the long term bleed over from this evisceration of Habeas will be in those forums and cases? Already, in its own sphere, SCOTUS has started the whittling down in Cullen v. Pinholster this term by severely curtailing evidentiary hearings…..

Jonathan Hafetz July 10th, 2011 at 2:57 pm

I supported a wider criminal investigation (the Durham investigation is too narrow). At least there should have been a bipartisan congressional inquiry, along the lines of the Church Commission from the mid-1970s.

Dahlia Lithwick July 10th, 2011 at 2:59 pm
In response to bmaz @ 65

excellent question

Daphne Eviatar July 10th, 2011 at 3:01 pm

Thanks for mentioning the Bagram situation, because it’s been so completely ignored by the media. There are now some 2400 men held by the U.S. indefinitely without charge or trial in Afghanistan and nothing even remotely resembling due process. But in part because these detainees don’t have habeas or lawyers, hardly anyone in the U.S. knows anything about them.

Jonathan Hafetz July 10th, 2011 at 3:02 pm

I think public opinion has veered back in the direction of the “worst of the worst” viewpoint. I think the battle over the narrative about who was at Gtmo (“innocent shepherd” or “al Qaeda fighter”), while valuable from an advocacy standpoint, has always diverted attention from the more important question of what legal retime we were employing there.

Dahlia Lithwick July 10th, 2011 at 3:03 pm
In response to Daphne Eviatar @ 61

Do you think there is a way to make these arguments successfully? I thought Holder did a pretty good job defending the KSM decision but he seems to have persuaded nobody . . .

bmaz July 10th, 2011 at 3:03 pm

Ha!! Not to mention that the “Durham investigation” up until a few days ago was not actually a formal investigation at all, but rather an extraordinarily circumscribed preliminary review. And boy howdy is that a different animal than a formal investigation.

emptywheel July 10th, 2011 at 3:05 pm

I think he was drowned out. The thing to do would have been to fearmonger that trying him in an MC might mean he’d not get killed or something like that. As distasteful as that is, that’s pushing back on the same ground those politicizing this are doing.

And if the Admin had backed Kris’ stand that material support is not an MC charge it might have established that stance in teh courts in a way Congress couldn’t have pushed back on.

Dahlia Lithwick July 10th, 2011 at 3:05 pm

I mean his original defense of the decision –

Jonathan Hafetz July 10th, 2011 at 3:07 pm
In response to bmaz @ 65

I think there will inevitably be “bleeding” in both directions (from executive detention habeas into post-conviction habeas and post-conviction habeas into executive detention habeas). As your question suggests, the Supreme Court (and Congress) have significantly weakened habeas in the post-conviction context during the past three decades. We’re now seeing a similar dynamic at work in the post-Boumediene habeas decisions. To me the big difference is that criminal defendants have at least been tried, convicted, and sentenced. If anything, this means that executive detention habeas (i.e., Gtmo habeas) should be more robust.

PeasantParty July 10th, 2011 at 3:11 pm

We have seen Spain try to step up and do the right thing, but they are always bought off. Do either of you see any chance of another nation trying to bring about investigations for war crimes?

Dahlia Lithwick July 10th, 2011 at 3:11 pm

I wonder what other people think about the impact of the Abu Ghraib photos. Jonathan talks about this on pp 64. I think in hindsight that they may have done more to normalize/legitimize the abuses we are discussing than not. I think it became part of the Jack bauer torture porn zeitgeist that has made abuse a part of the new normal

PeasantParty July 10th, 2011 at 3:13 pm

For the most part, I think Americans were shocked. However, I have to blame the media for the way in which they narrated the showings.

Jonathan Hafetz July 10th, 2011 at 3:14 pm
In response to PeasantParty @ 75

There are proceedings in Poland as well I believe, in connection with the CIA “black sites” there. I’m not optimistic they will yield anything concrete but believe they are important nonetheless.

PeasantParty July 10th, 2011 at 3:17 pm

Thank you. I’ve discussed these issues with many CIA and FBI ex-pats. They all seem to have a particular hatred for Cheney and his crew. I hope that Poland makes it more noticeable in some press releases, even if it doesn’t go far.

Dahlia Lithwick July 10th, 2011 at 3:18 pm

Jonathan is there any way to situate your plea for a robust habeas right in the renewed zeal for true constitutionalism that is happening just now? By which I mean, you do such a nice job reminding us why the framers felt as they did about habeas . . . might this be an issue on which there could be new interest/passion/devotion? And no this is not an entirely fatuous question.

emptywheel July 10th, 2011 at 3:19 pm

I sort of think they’ve been segmented as part of Iraq, not Gitmo. And the whole “small handful” theory–making the Lynndie Englands the scapegoats.

It’ll be interesting whether a Jamadi murder prosecution (which is still a long way off–but the govt MIGHT go after a contractor in a way they won’t go after a CIA officer–) might change that slightly bc we have images of him on ice.

But I’m not optimistic.

bmaz July 10th, 2011 at 3:19 pm
In response to emptywheel @ 72

Exactly right as to Kris and the material support argument

Dahlia Lithwick July 10th, 2011 at 3:20 pm
In response to PeasantParty @ 77

in what way did the media mess it up?

bmaz July 10th, 2011 at 3:21 pm

Oh, quite agreed on the tried versus non-tried bit.

PeasantParty July 10th, 2011 at 3:22 pm

I felt as though after the first showing, they sort of explained it away as what needed to be done to save us from mushroom clouds. They more or less excused the lawlessness of it.

Jonathan Hafetz July 10th, 2011 at 3:22 pm
In response to emptywheel @ 72

Apparently, Mitch McConnell told Fox News that the Casey Anthony verdict demonstrates the need for military commissions (by showing how difficult it is to get a criminal conviction).

Dahlia Lithwick July 10th, 2011 at 3:24 pm

So we have agreed that Obama should have launched a serious investigation, tried KSM in NYC and renounced state secrets. He didn’t. Is there anything he might still do to reverse gears? Or, better, whats the one thing he should do tomorrow (or has he done it wrt Warsame?)

bmaz July 10th, 2011 at 3:24 pm

Wait, I thought that was Bill Welch to Leona Brinkema….

Dahlia Lithwick July 10th, 2011 at 3:26 pm

we should also probably do divorce cases before military commissions

Jonathan Hafetz July 10th, 2011 at 3:28 pm

It’s worth trying. We tried to tap into this during all of the major legal battles over habeas (Rasul, Boumediene, etc.). I think it’s important to do the same now in terms of the fight over using the criminal justice system in the terrorism context. The problem is that there’s so much support for the new forms of noncriminal (military) detention. Also, when advocates extol the virtues of the criminal justice system, they typically do so in terms of how effective it is at convicting terrorists (in contrast to military commissions). There’s too little focus on the values the criminal justice system (e.g., presumption of innocence, right to a prompt and fair trial), which the new system of indefinite detention extinguishes.

bmaz July 10th, 2011 at 3:29 pm

I don’t even like Warsame as being fit for the purpose intended; I think the actual nexus for jurisdiction is shit and is a poor vehicle to use to wedge back into Article III terrorism trials.

Tomorrow, Obama could renounce the prophylactic state secrets use, especially by withdrawing it in al-Haramain and Hepting, and could similarly renounce the affirmative positions of the Administration against Habeas availability (which in turn would allow far better resolution of the Gitmo cases).

PeasantParty July 10th, 2011 at 3:31 pm

I greatly appreciate all the work you have done in book and research. We Americans simply cannot let this go or be shoved under the rug. Now, it is part of history and must be reflected upon to make sure that we do not turn our great country into Barbarians that we have always tried not to be.

However, after reading many books on what our intelligence officers are required to do in other nations it is more than torture.

bmaz July 10th, 2011 at 3:32 pm
In response to bmaz @ 91

And, I might add, it is possible as Mr. Obama himself has demonstrated through the shift in recognition of Equal Protection in the DOMA/DADT cases arena. The shift CAN be done.

Jonathan Hafetz July 10th, 2011 at 3:33 pm

Obama mustthreaten to veto the proposed legislation that would mandate the military detention of (noncitizen) terrorism suspects. This legislation would expand the Guantanamo system in radical and unprecedented ways. The president cannot accept that he must seek permission to use the Article III courts to prosecute terrorism suspects.

Dahlia Lithwick July 10th, 2011 at 3:34 pm

you’re reminding me of John Paul Stevens’ great speech about prosecutorial misconduct. About how the incentives have gotten so wonky there’s no voice for the defense side anymore http://blogs.wsj.com/law/2011/05/03/stevens-urges-congress-to-crack-down-on-prosecutorial-misconduct/

PeasantParty July 10th, 2011 at 3:34 pm

LOL! Boy, that would really be a hoot!

PeasantParty July 10th, 2011 at 3:35 pm

We here at FDL have been following the Manning case as best we can. I think they have skewed so many lines with that child that they have no excuses left.

Dahlia Lithwick July 10th, 2011 at 3:35 pm
In response to bmaz @ 93

That hadnt occurred to me but you are right

Jonathan Hafetz July 10th, 2011 at 3:35 pm

Another positive move (and one that would be very simple) is to adopt the proposal made by the ACLU’s Jameel Jaffer and Larry Siems in a recent NYT op-ed and honor those members of the military who took a stand against torture.

bmaz July 10th, 2011 at 3:36 pm

Oh, that was a beauty Stevens uncorked.

Dahlia Lithwick July 10th, 2011 at 3:40 pm
In response to PeasantParty @ 92

One of the most important arguments in Jonathan’s book is that the enduring lesson of Gitmo is that habeas corpus matters now more than ever; it was habeas and the courts that checked the overreach.

Jonathan Hafetz July 10th, 2011 at 3:40 pm

The case Stevens was talking about (Connick v. Thompson), where the Supreme Court overturned a jury award to an innocent man who’d spent 14 years on death row after prosecutors concealed evidence that could have cleared him, does make me wonder how much Guantanamo and other post-9/11 abuses are not so extraordinary, but rather are emblematic of how the US gov’t treats prisoners in the criminal justice system (not to mention immigration detention).

bmaz July 10th, 2011 at 3:41 pm

Another beauty. But I think that points to an inherent failing in the Obama Administration – there are all these things they COULD do, but they seem either timid or just do not desire those goals. I have really come to believe the latter. There is so much that is so easy; when people like Theissen, Liz Cheney etc come out with outrageous torture/detention supporting bunk in the WaPo or wherever, the rebuttal should not be left to Marcy and Dahlia and Greenwald, there should be Administration people standing tall against it.

But they Will. Not. Do. It.

Jane Hamsher July 10th, 2011 at 3:42 pm

I always look for “who’s making money.” I felt like the cloud lifted when I learned that the private prison cartel was funding the campaign for the Arizona immigration law, and making billions off of housing undocumented immigrants.

But that’s not always the reason. Pete Peterson will spend a billion dollars trying to cut Social Security because he wants a legacy and he’s pissed he’ll never be Henry Kraviz. I have a strong hunch the current wave of gun control PR we’re seeing has to do with the fact that rich Wall Street robber barons are getting nervous about the class war, and their position in it, and are starting to write checks.

I always try to look for systemic reasons for why things perpetuate or accelerate, because that’s usually the best action target. Erosion of civil liberties could be a function of human nature during times of economic uncertainty and political upheaval. It could just be systemic inertia. Or, somebody could be getting rich. That’s usually the answer 90% of the time.

Dahlia Lithwick July 10th, 2011 at 3:44 pm
In response to bmaz @ 104

Well but just to stir up some last-minute differences, I think the Admin really TRIED to Do It with respect to the KSM trials. That was the line in the sand. Holder staked his whole reputation on it. The only thing more depressing than an unwillingness to defend these principles is that when they attempt to defend them, it’s a slaughter anyhow . . . .

PeasantParty July 10th, 2011 at 3:44 pm

Emptywheel and Bmaz have reported on the great many detainees that were children at the time of capture. Also, the many that are most probably innocent but have had no recourse. I look forward to reading your book.

Dahlia Lithwick July 10th, 2011 at 3:45 pm

and, emblematic, too, of a culture that has come to view law as a series of tricks and lies to protect the guilty.

bmaz July 10th, 2011 at 3:47 pm

Bingo. I can tell you, that has long been the case in the state courts I practiced in, but we at least had hope in the Federal courts on Habeas where there was clear merit and a chance on constitutional issues on appeal. that is just about shot now. And I think certain aspects of the prison system are brutally closer to that which we decry with the detainees as well; though certainly not the ultimate issue of due process. Just as to baseline conditions though (removing torture and due process) some of those Republican congresspeople may be right that it is not all that bad compared to the old dungeons and prisons we treat regular criminals to.

Jonathan Hafetz July 10th, 2011 at 3:48 pm

I agree Dahlia. I was actually a little surprised that Holder didn’t resign as a result. I suppose he believed he could do more good from inside, which is probably true.

Dahlia Lithwick July 10th, 2011 at 3:49 pm
In response to Jane Hamsher @ 105

Jane I had precisely the same reaction when I heard about the role ALEC played in the Arizona immigration debate. It was a total Sesame Street AHAH moment for me. But I think the other thing at play here is that Obama has to be wrong about everything all the time. And so when Bush interrupts a dirty bomb plot he is tough on terror. When Obama disrupts a Christmas Day plot it shows he is weak on terror. Bush’s terror trials were meant to showcase the american justice system. Obama’s would have endangered us all . . .

PeasantParty July 10th, 2011 at 3:50 pm

Your view of Holder is much, much higher than mine. Let’s all hope he regains his standing on the Constitution and Bill of Rights.

bmaz July 10th, 2011 at 3:52 pm

Anarchist!

Seriously, after the initial volley, which was decent, the Administration seemed to (where have we seen this before) start caving immediately to the blowback. And they also got outflanked by Bloomberg and Kelly who were trying to leverage them. It all blew up awful fast for people that actually had their hearts in it – so I dunno….

BevW July 10th, 2011 at 3:54 pm

As we come to the end of this great Book Salon,

Jonathan, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book and Habeaus Corpus.

Dahlia, Thank you for Hosting this great Book Salon.

Everyone, if you would like more information:

Jonathan’s website and book

Dahlia’s website

Next week:
Saturday – Abby Dees / Queer Questions, Straight Talk
Sunday – Garrett Graff / The Threat Matrix

Just quick reminder:
Membership drive! Are you an FDL member? If not, please join and help keep FDL delivering kick ass activism and independent journalism. You can join HERE.

Thanks all,
Have a great week!

Jonathan Hafetz July 10th, 2011 at 3:56 pm
In response to bmaz @ 113

The other big mistake was not resettling a handful of Uighurs in the U.S. (where there was a community read to accept them) in the spring of 2009, before the backlash took root and before the legislation making such a move impossible. Jane Mayer’s piece for the New Yorker (http://www.newyorker.com/online/blogs/newsdesk/2011/04/the-ksm-trial-decision.html) does an excellent job dissecting how the resettlement plan was killed.

nahant July 10th, 2011 at 3:56 pm
In response to Jane Hamsher @ 105

Ain’t that the truth Jane. Just like Cantor betting against the debt limit being raised. As always follow the Money..

PeasantParty July 10th, 2011 at 3:57 pm

Great Book Salon. Thanks to All.

Jonathan Hafetz July 10th, 2011 at 3:57 pm
In response to BevW @ 114

Thank you Bev, Dahlia, and everyone else for the opportunity to engage in such a wonderful discussion.

bmaz July 10th, 2011 at 4:00 pm

Exactly, but if your goal is to affirmatively set the scene, you do it quickly, efficiently, firmly and quietly at the get go so that it is done. You know there is going to be blowback; set a foundation and record with a successful settlement in order to countermand it. You and Mayer are spot on in this regard.

Sorry but the comments are closed on this post