Rights of detainees

  • November 1, 2012
    Guest Post

    By Rebecca Sharpless, Associate Clinical Professor, University of Miami School of Law


    Two years ago in Padilla v. Kentucky the U.S. Supreme Court ruled that the Sixth Amendment requires that defense attorneys advise their noncitizen clients about the immigration consequences of a plea. The Court recognized what, for decades, the defense and immigration bars have known: competent defense counsel must advise about immigration consequences of a plea. Today, in Chaidez v. USA, No. 11-820, the Court hears argument on the question of whether Padilla governs cases involving federal convictions that predate that decision.

    Chaidez’s defense attorney failed to advise her that pleading guilty to the federal crime of mail fraud would be deemed an aggravated felony, triggering mandatory deportation.  Before Padilla was decided, Chaidez petitioned for a writ of coram nobis under 28 U.S.C. § 1651(a) to set aside her conviction based on ineffective assistance of counsel. After Padilla, Chaidez relied upon the decision to lend support to her argument that her attorney had breached a duty to advise her about deportation.

  • May 29, 2012

    by Jeremy Leaming

    As a presidential candidate in 2008, Barack Obama leveled broadsides against the counterterrorism efforts waged by the administration of George W. Bush. Deep into President Obama’s term many see a continuation if not drastic advancement of Bush counterterrorism policy.

    In an extensive piece Jo Becker and Scott Shane report for The New York Times that Obama has “preserved three major policies – rendition [where prisoners are sent to secretive sites to undergo harsh, often brutal interrogation], military commissions and indefinite detention – that have been targets of human rights groups since the 2001 terrorist attacks.” 

    The story also states that the president, who as a candidate railed against the military prison at Guantanamo Bay, and promised if elected to close it, did not have a plan to convince Congress to shutter the prison.

    A major piece of The Times reporting focuses on the personal involvement of the president in sessions to determine which terrorist suspects to kill or capture. “It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.” The president, The Times reports, will then sign off on who to target.

    In a piece titled “Obama the Warrior” for Salon, Glenn Greenwald highlights the support Obama has garnered from some of the far right architects of the Bush counterterrorism policy, noting a progressive myth that the far right never lauds the president:

    Virtually every one of the most far-right neocon Bush officials – including Dick Cheney himself – has spent years now praising Obama for continuing their Terrorism policies which Obama the Senator and Presidential Candidate once so harshly denounced. Every leading GOP candidate except Ron Paul wildly praised Obama for killing U.S. citizen Anwar Awlaki without a shred of due process and for continuing to drop unaccountable bombs on multiple Muslim countries.

  • December 21, 2011

    by Nicole Flatow

    Following Congress’s enactment of the National Defense Authorization Act with some tweaks to the detainee provisions, the White House put out a statement that President Obama’s advisers would no longer recommend he veto the law.

    Most have viewed this as an indirect announcement from Obama himself that the veto is off the table. But the Brennan Center for Justice’s Elizabeth Goitein reminds Obama in a column for The Hill that he alone will make the decision, and that it’s not too late to “reject this historic affront to our liberty and our security.”

    “It would be extraordinary for the president to change course now,” writes Goitein, co-director of the Brennan Center’s Liberty and National Security. “But to sign a bill that permits the indefinite detention of U.S. citizens without charge, erects pointless barriers to law enforcement’s counterterrorism efforts, and requires the detention of innocent people would be even more extraordinary.”

    Disappointment among civil libertarians has been widespread, with the Center for Constitutional Rights saying Obama has made a “choice with chilling consequences” and Human Rights Watch’s Kenneth Roth warning, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law."

    Georgetown University Law Professor David Cole explains in The New York Review of Books why the bill, even as amended, “continues to contain extraordinarily dangerous principles”:

  • November 1, 2011
    Guest Post

    By Stephen I. Vladeck, a law professor and associate dean for scholarship at American University Washington College of Law.


    Typically, when Congress buries critical substantive policy initiatives in massive spending bills, the question is whether anyone — the media, in particular — will take heed. But with regard to the detainee provisions nestled into a subtitle of the Senate Armed Services Committee’s version of the National Defense Authorization Act (NDAA), garnering public attention has surprisingly not been the issue. Instead, thanks to a very public series of disagreements between Senate Majority Leader Harry Reid and Senators Carl Levin and John McCain (respectively the Chair and Ranking Member of the Committee), the jig is up on keeping these provisions under the radar — as manifested, to take two of many examples, in editorials in this Sunday’s Washington Post and last Sunday’s New York Times.

    There’s a lot going on in the NDAA, but the provisions animating much of the current debate would do three separate things:

    1. Define with at least some specificity the scope of the government’s power to detain terrorism suspects without trial;

    2. Mandate the military detention of certain non-citizen terrorism suspects (and thereby bar their prosecution in civilian federal courts); and

    3. Make permanent what have thus far been temporary spending restrictions barring the President from using certain funds to transfer detainees from Guantánamo to the United States for continuing long-term detention.

    A lot of the opprobrium directed at the NDAA — including in Sunday’s Post editorial — has been focused on the latter two provisions, and for good reason. In this post, though, I want to explain why the first provision is no less (and perhaps even more) significant, and why the Post’s endorsement thereof is so alarmingly short-sighted.

  • September 21, 2011
    Guest Post

    By Jamil Dakwar, director of the ACLU's Human Rights Program. This is a cross-post from the ACLU's Blog of Rights.


    Many people in the United States and around the world remember the horrific events of September 11, 2001 as some of the worst crimes against humanity of the last decade. These attacks savagely flouted the fundamental values of international human rights.

    While the international community was united behind the U.S. call to bring those responsible to justice, the struggle against terrorism — hardly a new enterprise — took a wrong turn towards undermining the international legal frameworks and accountability mechanisms that were developed after World War II.