Habeas Corpus and the “War on Terror”

Habeas Corpus after 9/11
Confronting America's New Global Detention System
Jonathan Hafetz
April 14, 2011

By Jonathan Hafetz, a law professor at Seton Hall Law School who has litigated a number of leading national security habeas corpus cases.  

Following his inauguration, President Obama ordered the closure of the U.S. prison at Guantanamo Bay within one year. More than two years later, however, Obama’s plan to close Guantanamo is in shambles. More than 170 prisoners remain at Guantanamo, and new legislation makes it extremely difficult to transfer additional prisoners from the naval base. Defense Secretary Robert Gates recently called the prospects for closure “very, very low,” and the administration is pressing ahead with new military commission trials at the base. In many ways, the United States is further from closing Guantanamo now than it was after Obama’s inauguration.

Guantanamo has always been more than a prison. It is also the symbol of a new, alternative detention system that denies prisoners the full protections of America’s criminal justice system. Guantanamo’s continued existence reflects not merely America’s failure to close this notorious prison, but its acceptance of the larger system the prison embodies.

Even as Obama vowed to close Guantanamo, he indicated that he would continue to use “military commissions,” pledging to reform the fatally flawed war crimes tribunals rather than end them. The administration’s decision to abandon the federal criminal prosecution of Khalid Shaikh Mohammed and four other alleged 9/11 plotters in favor of military commissions demonstrates the power this alternative system exerts over U.S. counter-terrorism policy. Obama has likewise endorsed another key feature of Guantanamo: the indefinite detention of some terrorism suspects without trial. His recent executive order creating a new review board to periodically examine their cases demonstrates how deeply this practice has become institutionalized. The question, in short, is not whether the post-9/11 detention system will continue (it will), but what form it will take and how broadly it will sweep.

My book, Habeas Corpus after 9/11: Confronting America’s New Global Detention System, describes the shift in U.S. detention policy after 9/11. It views Guantanamo not in isolation but as part of a larger network of prisons established by the Bush administration to operate outside the law. This network included other military detention centers like Bagram in Afghanistan as well as secret CIA jails or “black sites.” The book explains how the United States deliberately created these offshore prisons to facilitate extrajudicial detention, to engage in torture and abusive interrogation practices, and to maximize secrecy. The often clandestine movement of individuals from one prison to another often resembled an elaborate shell-game designed to avoid court review and accountability.

After chronicling the growth of this new global detention system, the book describes efforts to challenge it through habeas corpus. At its essence, habeas corpus (Latin for “you shall produce the body”) requires that the government justify its imprisonment of an individual before a judge. Once called the “most important human right in the Constitution,” habeas corpus has been at the center of litigation over the government’s detention and treatment of prisoners in the “war on terror.”

Most of this litigation has focused on Guantanamo, producing three Supreme Court decisions. The most recent, and important, Boumediene v. Bush, rejected the government’s argument that merely because a detainee is a non-citizen and is held outside the United States, he is necessarily outside the Constitution. In holding that Guantanamo detainees have a right to access U.S. courts under the habeas corpus Suspension Clause, the Court invalidated legislation by Congress seeking to deprive them of that right and deny them a fair hearing to challenge their continued imprisonment.

My book describes the important role habeas corpus has played in challenging the detention of “enemy combatants” at Guantanamo and elsewhere. The book discusses how habeas corpus has served both as a safeguard of individual liberty and check on arbitrary executive action after 9/11. At the same time, however, book describes some limitations of habeas corpus, explaining, for example, its inability to end indefinite detention and extrajudicial detention. 

As recent court decisions have shown, some prisons still remain beyond the reach of habeas corpus (such as Bagram). Moreover, even at Guantanamo, appellate courts in the aftermath of Boumediene have viewed the habeas right narrowly, deferring to the government’s assessment of the evidence and denying district judges the authority even to order the release of a prisoner whose confinement they have found to be illegal. Meanwhile, proposed legislation in Congress would further restrict judges’ power to inquire into the basis of a prisoner’s detention.

Nearly a decade after 9/11, the battle for habeas corpus continues. While habeas has demonstrated its enduring importance to America’s Constitution and system of government, it has failed to halt the steady erosion of due process and the increase in state power that are becoming permanent features of U.S. national security policy.