Jonathan Hafetz's "Habeas Corpus after 9/11"

Jonathan Hafetz is a professor at Seton Hall Law School and has litigated numerous landmark habeas corpus detention cases. His publications include The Guantnamo Lawyers: Inside a Prison Outside the Law, co-edited with Mark Denbeaux.

He applied the “Page 99 Test” to his new book, Habeas Corpus after 9/11: Confronting America’s New Global Detention System, and reported the following:

The book examines the shift in U.S. detention policy after 9/11. As the book explains, Guantanamo is part of larger detention system created in the “war on terror.” The book thus discusses Guantanamo in the context of other off-shore prisons such as Bagram in Afghanistan and secret CIA “black sites” created to operate without judicial oversight and outside the law.

Page 99 discusses Hirota v. MacArthur, a 1948 Supreme Court decision that rejected a habeas corpus challenge to an international tribunal that had tried various Japanese officials and military officers for war crimes. (Habeas corpus is a centuries-old writ used to challenge unlawful detention). The Court rejected the challenge in Hirota, concluding that a U.S. court had “no power or authority to review, to affirm, set aside, or annul the judgments” of an international tribunal.

After 9/11, the Bush administration seized on Hirota for the more sweeping proposition that U.S. courts had no jurisdiction to hear challenges by prisoners held by the United States whenever the U.S. was acting as part of an international force, even if the prisoners were under the sole control of the United States. Under the government’s theory, the executive could invoke a U.N. Security Council resolution to shield any U.S. detention from judicial scrutiny (An ironic claim for an administration that spurned international legal obligations in its treatment of prisoners held as “enemy combatants”).

In its 2008 decision in Munaf v. Geren, the Supreme Court rejected the government’s theory in a habeas corpus case involving two American citizens imprisoned in Iraq. Since the prisoners remained under U.S. control, the Court ruled, the courts had jurisdiction over their petitions, even though the U.S. was operating in Iraq as part of a multinational force. The Court nonetheless dismissed the cases, holding that federal judges could not afford relief where the U.S. held a prisoner in another country for crimes allegedly committed in that country (one petitioner in Munaf was held on allegations of kidnapping; the other for associating with terrorists). Both men presented evidence that they would be tortured if handed over to Iraqi authorities. The U.S. government now reads Munaf broadly to extinguish judicial review over any extraterritorial prisoner transfer by the executive—even where the detainee asserts a fear of likely torture in violation of U.S. and international law. The book explains how the government’s position represents a threat to habeas corpus and the effective enforcement of human rights.

Read an excerpt from Habeas Corpus after 9/11, and learn more about the book at the publisher's website.

--Marshal Zeringue