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2012 American Bar Association Gavel Award Honorable Mention for Books 2012 Scribes Book Silver Medal Award presented by the American Society of Legal Writers 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.

The district court dismissed the petition,6 but the Ninth Circuit reversed, finding that the elimination of habeas review for those facing expedited removal violated the Suspension Clause.7 In reaching its conclusion, the Ninth Circuit disagreed with the Third Circuit which had previously upheld Congress's elimination of habeas review of expedited removal against a Suspension Clause challenge.8 The Supreme Court granted certiorari9 and reversed.10 The five-Justice majority opinion, authored by Justice Alito, held that the Suspension Clause did not apply because Thuraissigiam's challenge-which the Court characterized as asserting a right to remain in the United States or, alternatively, to obtain additional administrative process to attain that result, rather than seeking simple release from custody-did not fall within historical core of habeas corpus protected by the Suspension Clause.11 The Court further concluded that its prior decisions, which had reviewed legal challenges by noncitizens facing immigration removal in the face of congressional restrictions on judicial review, reflected an exercise of statutory construction rather than an interpretation of the Suspension Clause.12 Thuraissigiam also distinguished the Court's most recent Suspension Clause ruling, Boumediene v. Bush,13 determining that the petitioners there, alleged \"enemy combatants\" held at Guantanamo Bay, did not seek to enter the United States, but instead only sought release from U.S. military custody.14 Justice Alito then reached out to decide whether the Due Process Clause independently entitled Thuraissigiam to judicial review,15 even though Thuraissigiam had only raised a due process claim on the merits based on flaws in the administrative \"credible fear\" process,16 and had maintained that the Court first needed to find habeas jurisdiction under the Suspension Clause before reaching any due process issue.17 The Court nevertheless ruled that Thuraissigiam had no due process right to any additional protections in challenging his expedited removal beyond what Congress had provided because he was seized just inside the border after entering the country without inspection.18 The Court reached this conclusion despite its prior precedents stating that the Due Process Clause protected all persons inside the country regardless of whether they had entered without inspection or how far inside the border they had been seized.19 Justice Thomas wrote separately to express his view that the Suspension Clause, based on what he described as its original meaning, should be limited to \"the circumstances in which Congress may give the executive power to detain without bail or trial based on suspicion of a crime or dangerousness. \"20 Since expedited removal does not permit detention on this basis, but instead allows for a noncitizen's removal based on a lack of proper documentation and ineligibility for asylum, it cannot constitute a suspension of the writ.21 In another concurring opinion, Justice Breyer, joined by Justice Ginsburg, critiqued the Court's decision for its unnecessary sweep.22 The concurrence would have instead denied Thuraissigiam's challenge for two reasons: first, because the scope of any constitutionally mandated habeas review in these circumstances-where a border patrol agent apprehends a noncitizen without prior connections to the United States just 25 yards inside the border-must be narrow;23 and second, because Thuraissigiam's claims, which Justice Breyer said primarily sought review of agency fact-finding, were the type of claims that Congress can make unreviewable in habeas proceedings consistent with the Suspension Clause.24 Justice Sotomayor, joined by Justice Kagan, issued a lengthy and forceful dissent.25 Justice Sotomayor maintained that immigration removal decisions are covered by the Suspension Clause and accused the majority of distorting both history and precedent.26 Justice Sotomayor explained that Thuraissigiam's request-to be released from wrongful executive custody-fell within the historical core of the writ and was \"indistinguishable\" from prior instances of noncitizens challenging restraints that prevented them from seeking shelter in the country.27 Justice Sotomayor criticized the majority's use of history, observing that the Court had \"never rigidly demanded a one-to-one match between a habeas proceeding and a common-law habeas analog\"- a particularly problematic methodological approach, she insisted, given that immigration law, as such, did not exist at common law.28 She also said the majority's decision could not be squared with Supreme Court precedent that had consistently recognized that the Suspension Clause mandated at least some judicial intervention in immigration removal decisions.29 Justice Sotomayor further explained that Justice Breyer's concurrence misconstrued Thuraissigiam's claims, which did not seek to overturn a purely factual error, but rather challenged the agency's misapplication of the legal standard to the existing facts, a type of claim that had traditionally been reviewable through habeas.30 She argued that the petitioner also should be able to challenge constitutional defects in the procedures themselves through habeas.31 This Article explains why the Supreme Court made multiple, critical errors in Thuraissigiam. Notably, in rejecting Thuraissigiam's Suspension Clause challenge, the Supreme Court addressed only the argument that the petitioner was entitled to habeas based on the writ that existed in 1789. Because the Court concluded that Thuraissigiam had waived any argument that the Suspension Clause's reach had broadened over time, it declined to address that argument. [...]despite Thuraissigiam's significant errors-all of which reinforce the need to interpret the decision narrowly-Thuraissigiam presents an opportunity to examine why the Suspension Clause should be interpreted to protect more than the habeas writ that existed in 1789.

\"Obama's Guantâanamo: Stories from an Enduring Prison describes President Obama's failure to close America's enduring offshore detention center, as he had promised to do within his first year in office, and the costs of that failure for those imprisoned there. Like its predecessor, Guantâanamo Lawyers: Inside a Prison Outside the Law, Obama's Guantâanamo consists of accounts from lawyers who have not only represented detainees, but also served as their main connection to the outside world. Their stories provide us with an accessible explanation of the forces at work in the detentions and place detainees' stories in the larger context of America's submission to fearmongering. These stories demonstrate all that is wrong with the prison and the importance of maintaining a commitment to human rights even in times of insecurity\"--Publisher's web site.

2012 American Bar Association Gavel Award Honorable Mention for Books 2012 Scribes Book Silver Medal Award presented by the American Society of Legal Writers 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.

Read free excerpts from the book at http://www.theguantanamolawyers.com and explore the complete archive of narratives at http://dlib.nyu.edu/guantanamo Following the terrorist attacks of 9/11, the United States imprisoned more than seven hundred and fifty men at its naval base at Guantánamo Bay, Cuba. These men, ranging from teenage boys to men in their eighties from over forty different countries, were detained for years without charges, trial, and a fair hearing. Without any legal status or protection, they were truly outside the law: imprisoned in secret, denied communication with their families, and subjected to extreme isolation, physical and mental abuse, and, in some instances, torture. These are the detainees' stories, told by their lawyers because the prisoners themselves were silenced. It took habeas counsel more than two years-and a ruling from the United States Supreme Court-to finally gain the right to visit and talk to their clients at Guantánamo. Even then, lawyers were forced to operate under severe restrictions designed to inhibit communication and envelop the prison in secrecy. In time, however, lawyers were able to meet with their clients and bring the truth about Guantánamo to the world. The Guantánamo Lawyerscontains over one hundred personal narratives from attorneys who have represented detainees held at \"GTMO\" as well as at other overseas prisons, from Bagram Air Base in Afghanistan to secret CIA jails or \"black sites.\" Mark Denbeaux and Jonathan Hafetz-themselves lawyers for detainees-collected stories that cover virtually every facet of Guantánamo, and the litigation it sparked. Together, these moving, powerful voices create a historical record of Guantánamo's legal, human, and moral failings, and provide a window into America's catastrophic effort to create a prison beyond the law. An online archive, hosted by New York University Libraries, will be available at the time of publication and will contain the complete texts as well as other accounts contributed by Guantánamo lawyers. The documents will be freely available on the Internet for research, teaching, and non-commercial uses, and will be preserved indefinitely as a historical collection.