A War Like No Other (40 page)

8
. United States v. U.S. Dist. Court (
Keith
), 407 U.S. 297, 317–21 (1972).

9
. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783.

10
. Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680 (codified at 42 U.S.C. § 2000dd [2006]).

11
. “Presidential Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act 2006,”
Weekly Compilation of Presidential Documents,
December 30, 2005, 1918, available at
www.presidency.ucsb.edu/ws/index.php?%20pid=65259
(declaring that “[t]he Executive branch shall construe” the prohibition “in a manner consistent with the constitutional authority of the President . . . to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional
limitations on the judicial power” in order to “protect[] the American people from further terrorist attacks”).

12
. See U.S. Constitution, art. I., § 8, cl. 11–15.

13
. Detainee Treatment Act of 2005 § 1005(e)(1).

14
. Military Commissions Act of 2006, Pub. L. No. 109-366, § 7, 120 Stat. 2600.

15
. The courts have since rejected the military commissions’ jurisdiction over material support for terrorism as an international law crime. Hamdan v. United States (Hamdan II), 696 F.3d 1238, 1250 (D.C. Cir. 2012). June 14, 2014 en banc decision.

16
. See Alberto Gonzales, “Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States,” February 6, 2006,
www.justice.gov/archive/ag/speeches/2006/ag_speech_060206.html
.

17
. Letter from Alberto Gonzales, Attorney General, to Senators Patrick Leahy and Arlen Specter, Chairmen of the Committee on the Judiciary, January 17, 2007, available at
graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf
.

18
. Protect America Act of 2007, Pub. L. No. 110-55. 121 Stat. 552.

19
. FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.

20
. Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004).

21
. Ibid., 324–39.

22
. Rumsfeld v. Padilla, 542 U.S. 426 (2004).

23
. Padilla v. Hanft, 389 F. Supp. 2d 678, 692 (D.S.C. 2005).

24
. Padilla v. Hanft, 423 F.3d 386, 389 (4th Cir. 2005).

25
. Padilla v. Hanft, 547 U.S. 1062 (2006).

26
. Rasul v. Bush, 542 U.S. 466, 483–85 (2004).

27
. Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005, 119 Stat. 2680, 2740–44 (codified at 42 U.S.C. § 2000dd [2006]).

28
. Hamdan v. Rumsfeld, 548 U.S. 557, 572–84 (2006).

29
. Military Commissions Act of 2006, Pub. L. No. 109-366, § 7(b), 120 Stat. 2600, 2636.

30
. Rasul v. Myers, 512 F.3d 644, 665 (D.C. Cir. 2008).

31
. 553 U.S. 723 (2008).

32
. Ibid., 764–66.

33
. Ibid., 796–98.

34
. Ibid., 753–71.

35
. Ibid., 766.

36
. 424 U.S. 319 (1976).

37
. Exec. Order No. 13,491, 74 Fed. Reg. 4,893 (January 22, 2009).

38
. Exec. Order No. 13,492, 74 Fed. Reg. 4,897 (January 22, 2009).

39
. Exec. Order No. 13,491, 74 Fed. Reg. at 4,894.

40
. Carrie Johnson, “Prosecutor to Probe CIA Interrogations,”
Washington Post,
August 25, 2009,
www.washingtonpost.com/wp-dyn/content/article/2009/08/24/AR2009082401743.html
.

41
. Mark Mazzetti, “Obama Releases Interrogation Memos, Says C.I.A. Operatives Won’t Be Prosecuted,”
New York Times,
April 16, 2009,
thecaucus.blogs.nytimes.com/2009/04/16/secret-interrogation-memos-to-be-released/?ref=politics
. See also chapter 7, “Torture and Extraordinary Rendition.”

42
. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).

43
. Arar v. Ashcroft, 585 F.3d 559, 574–78 (2nd Cir. 2009) (en banc).

44
. Benjamin Weiser and Colin Moynihan, “Guilty Plea in Times Square Bomb Plot,”
New York Times,
June 25, 2010,
www.nytimes.com/2010/06/22/nyregion/22terror.html
.

45
. Charlie Savage, “Nigerian Indicted in Terrorist Plot,”
New York Times,
January 7, 2010, A14; U.S. Department of Justice, “Umar Farouk Abdulmutallab Indicted for Attempted Bombing of Flight 253 on Christmas Day,” news release, January 6, 2010,
www.justice.gov/opa/pr/2010/January/10-nsd-004.html
.

46
. See, e.g.,
Oversight of the Department of Justice: Hearing Before the S. Comm. on the Judiciary,
111th Cong. (2009) (statement of Attorney General Eric Holder); see also Charlie Savage, “Holder Defends Decision to Use U.S. Court for 9/11 Trial,”
New York Times,
November 19, 2009, A18.

47
. Military Commissions Act of 2006, Pub. L. No. 109-366, § 3(a)(1), 120 Stat. 2600.

48
. National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 1802, 123 Stat. 2190, 2574 (2009).

49
. See notes 18 and 19, above.

50
. Johan Steyn, “Guantánamo Bay: The Legal Black Hole,”
International and Comparative Law Quarterly
53, no. 1 (2004): 1–15.

51
. Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 231–32 (D.D.C. 2009).

52
. Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010).

53
. Al Maqaleh v. Hagel, 738 F. 3d 312 (D.C. Cir. 2013).

54
. Clapper v. Amnesty Int’l U.S.A., 133 S. Ct. 1138 (2013). See generally chapter 9.

Chapter 5: Law Is Everywhere

This chapter is based on “Law Is Everywhere,”
Yale Law Journal
117 (2007): 256–78.

1
. Aharon Barak, “Constitutional Law Without a Constitution: The Role of the Judiciary,” in
The Role of Courts in Society,
ed. Shimon Shetreet (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988): 448–67.

2
. CA 6821/93, 1908/94, 3363/94 United Mizrachi Bank v. Migdal Coop. Vffl. 49(4) 221 [1995] (Isr.), translated in
Israeli Law Review
31 (1997): 777–94.

3
. See Yuval Yoaz, “Friedmann Seeks New Version of Intifada Law, Bypassing Court,”
Haaretz,
June 5, 2007,
www.haaretz.com/hasen/spages/867274.html
.

4
. HCJ 5100/94 Pub. Comm. against Torture in Isr. v. State of Israel [September
6, 1999](Isr.) slip op., available at
elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf
.

5
. HCJ 769/02 Pub. Comm. against Torture in Isr. v. Gov’t of Israel [December 11, 2006] (Isr.) slip op. para. 22 (quoting HCJ 7957/04 Mara’abe v. Prime Minister [2005] para. 29), available at
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf
.

6
. HCJ 2056/04 Beit Sourik VOL Council v. Gov’t of Israel [June 30, 2004] (Isr.) slip op., available at
elyon1.court.gov.il/files_eng/04/560/020/a28/04020560.a28.pdf
.

7
. HCJ 769/02 Pub. Comm. against Torture in Isr. v. Gov’t of Israel [December 11,2006] (Isr.) slip op., available at
elyon1.court.gov.il/Files_ENG/02/690/007/A34/02007690.A34.pdf
.

8
. See Aharon Barak,
The Judge in a Democracy
(Princeton, NJ: Princeton University Press, 2006), 256–57.

9
. HCJ 769/02 Pub. Comm. against Torture in Isr. v. Gov’t of Isr. [December 11, 2006] (Isr.) slip op. para. 40, available at
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf
.

10
. Korematsu v. United States, 323 U.S. 214 (1944).

11
. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,551 U.S. 701 835 (2007) (Breyer, J., dissenting); Nixon v. Shrink Mo. Gov’t PAC, 528 US. 377, 401–2 (2000) (Breyer, J., concurring); Dist. of Colum. v. Heller, 554 U.S. 570 (2008) (Breyer, J., dissenting).

12
. See, e.g., Barak,
Judge in a Democracy,
309.

Chapter 6: Imprisonment Without Trial

This chapter is based on “Imprisonment Without Trial,”
Tulsa Law Review
47 (2011): 347–62.

1
. U.S. Constitution, art. 1, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).

2
. Geneva Convention Relative to the Treatment of Prisoners of War art. 118, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

3
. See ibid., art. 87 (“Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.”).

4
. Military Order of Nov. 13, 2001, 66 Fed. Reg. 57833 (November 16, 2001); see also Memorandum from President George W. Bush to Vice President Richard B. Cheney et al., “Humane Treatment of al-Qaeda and Taliban Detainees,” February 7,
2002, reprinted in
The Torture Papers: The Road to Abu Ghraib,
ed. Karen J. Greenberg and Joshua L. Dratel (New York: Cambridge University Press, 2005), 134.

5
. United States v. Lindh, 212 F. Supp. 2d 541, 552-58 (E.D. Va. 2002).

6
. Geneva Convention Relative to the Treatment of Prisoners of War art. 3.

7
. President Barack Obama, “Remarks by the President on National Security,” May 21, 2009,
www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09
.

8
. Ibid.

9
. Harold Hongju Koh, Legal Advisor, U.S. Department of State, “The Obama Administration and International Law,” March 25, 2010, at III.B.1.b,
www.state.gov/s/l/releases/remarks/139119.htm
. See also Alissa J. Rubin, “U.S. Backs Trial for Four Detainees in Afghanistan,”
New York Times,
July 18, 2010, A6 (describing the process of transferring responsibility for prisoners held in Afghanistan) (“One potential problem that has yet to be confronted is that an Afghan court could acquit a detainee whom the American review board deems a continuing threat. Then whose law will prevail? ‘Anybody not found guilty can be released, but we have an intense interest in not releasing people that pose a risk to the people of Afghanistan and to us,’ said Capt. Gregory Belanger, director of legal operations for Task Force 435.”).

10
. Geneva Convention Relative to the Treatment of Prisoners of War, art. 2 (“Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”).

11
. See, e.g., Obama, “Remarks by the President on National Security” (“Now let me be clear: We are indeed at war with al-Qaeda and its affiliates. We do need to update our institutions to deal with this threat.”); President Barack Obama, “Remarks by the President on Strengthening Intelligence and Aviation Security,” January 7, 2010,
www.whitehouse.gov/the-press-office/remarks-president-strengthening-intelligence-and-aviation-security
(“We are at war. We are at war against al-Qaeda, a far-reaching network of violence and hatred that attacked us on 9/11, that killed nearly 3,000 innocent people, and that is plotting to strike us again.”).

12
.
Guantanamo Review Task Force, Final Report
(January 22, 2010), 23,
www.justice.gov/ag/guantanamo-review-final-report.pdf
.

13
. Obama, “Remarks by the President on National Security.”

14
. Ibid.

15
. Exec. Order No. 13,491, 74 Fed. Reg. 4893 (January 22, 2009).

16
. See, e.g., United States v. Moussaoui, 365 F.3d 292 (2004) (balancing national security interests against constitutional rights in the production of evidence).

17
. See, e.g., U.S. Department of Justice, “Statement of Attorney General John Ashcroft Regarding the Padilla Case,” news release, February 20, 2004. See also Letter from Paul Wolfowitz, Deputy Secretary of Defense, to James Comey, Deputy Attorney General, May 28, 2004.

18
. U.S. Deparment of Justice, “Jose Padilla Charged with Conspiracy to Murder Individuals, Providing Material Support to Terrorists,” news release, November 22, 2005,
www.justice.gov/archive/opa/pr/2005/November/05_crm_624.html
.

19
.
Oversight of the Department of Justice: Hearing Before the S. Comm. on the Judiciary,
111th Cong. 1 (2009) (statement of Attorney General Eric Holder) (“And one of the things that this Administration has consistently said—in fact, Congress has passed legislation that would not allow for the release into this country of anybody who was deemed dangerous. And so that if—if there were the possibility that a trial was not successful, that would not mean that that person would be released into our country. That would—that is not a possibility. But again, I want to emphasize that I am confident that we will be successful in the trial of these matters.”).