How Has America’s Detention System Changed Since 9/11? (Part One)

See part two in this series, here, and part three, here.

Emily Berman:

Today, I begin an exchange with Jonathan Hafetz, Associate Professor of Law at Seton Hall University Law School, former Brennan Center attorney, and author of Habeas corpus after 9/11: Confronting America’s New Global Detention System. (To read more, please see an excerpt from the book: Terrorism as Crime.)

Jon, thanks so much for taking the time to answer questions and give us some thoughts regarding the detention of terror suspects.

I really enjoyed reading your book. It not only provides a detailed explanation of how America’s detention system developed and spread across the world, but also the crucial role that the Writ of Habeas Corpus plays in preventing unjust detention. Your story ends as the Bush Administration is leaving office, and notes some of the challenges that the new administration would face. Well, the new administration has been confronting these challenges for over two years now. And it’s remarkable to me how many issues that you address in your book remain salient today — much more so than I think either of us hoped or expected when this book went to press.

As a country and as a society, we still have not resolved whether or how to close the Guantanamo Bay detention center, where (if anywhere) to detain terrorism suspects, whether to prosecute terrorists in military commissions or federal courts, or whether the use of torture is an acceptable means of intelligence collection. As one attorney representing detainees recently pointed out, we used to know the answers to all these questions. Indefinite detention without charge or trial was unthinkable, the U.S. criminal justice system was the place to punish terrorists for their attacks on American interests, and the idea of using torture was anathema. But today all of these issues seem to be on the table for discussion.

As a country and as a society, we still have not resolved whether or how to close the Guantanamo Bay detention center, where (if anywhere) to detain terrorism suspects, whether to prosecute terrorists in military commissions or federal courts, or whether the use of torture is an acceptable means of intelligence collection.

So, while the Supreme Court’s Boumediene decision confirmed that the detainees at Guantanamo enjoy a constitutional right to habeas corpus, and waterboarding seems to be a thing of the past, have we made any meaningful progress since the first detainee was brought to Guantanamo Bay?

Jonathan Hafetz :

I think we have made some progress since the first prisoners were brought to Guantanamo Bay in January 2002, almost a decade ago. At the time, the names of detainees were secret, lawyers were prohibited from traveling to the naval base, and the detainees had no opportunity to access the U.S. court system. In addition, the treatment of the detainees at Guantanamo bordered on, and in some instances amounted to, torture. Today, the names of the detainees are public, lawyers can visit detainees who they are representing (though travel remains costly and difficult), and the Supreme Court has recognized that the detainees have a constitutional right to habeas corpus, which provides them access to the US courts. Conditions, moreover, have improved substantially.

These changes, however, took many years to achieve, causing profound (and unnecessary) suffering and undermining respect for the rule of law. These changes also are limited in numerous respects. Most importantly, the legal structure underlying Guantanamo remains largely intact, and its key features — the indefinite detention of terrorism suspects without criminal charge and the use of military commissions rather than civil courts — are becoming increasingly institutionalized. Further, the public pressure to close Guantanamo — a goal supported by both presidential candidates in 2008 — has vanished. Indeed, the United States is further from closing Guantanamo today than when President Obama was inaugurated. The question now seems not to be whether Guantanamo will close (it will not, at least not in the foreseeable future), but rather how much the prison — and the alternative legal framework it embodies — will expand.


A couple recent stories also suggest that the Obama Administration is exploring additional ways of perpetuating an indefinite detention regime. For example, we learned in recent weeks about Ahmed Abdulkadir Warsame, a man suspected of providing material support to two groups designated by the US government as terrorist organizations: al-Shabab, the militant Islamist group operating primarily in Somalia, and Yemen-based al-Qaeda in the Arabian Peninsula (AQAP). Warsame was captured by US special forces, held incommunicado for two months on a navy vessel in international waters while being interrogated, and then — after being read his Miranda rights and re-interrogated by law enforcement personnel — transferred to the United States for prosecution. This case succeeded in raising objections from both ends of the political spectrum — elements of the political right were outraged by the Obama Administration’s decision to bring Warsame to the US for prosecution, rather than sending him to a military commission. And the political left raised objections to the two months of detention without charge or trial, during portions of which even the International Committee of the Red Cross had no access to the detainee.

What do you think of this “split the baby” approach?


The Warsame case highlights tensions at the heart of the United States’ approach to terrorism. Above all, it focuses attention around the legitimate scope of the United States’ continued use of a military, law-of-war based approach to the detention and interrogation of terrorism suspects. In the Obama administration’s view, the US can either prosecute terrorists in federal court (in which case they will be afforded the protections of the Bill of Rights) or subject them to military detention under the 2001 Authorization for Use of Military Force (AUMF) (in which case they can be held without trial and potentially without any judicial review via habeas corpus).

Warsame was held for two months under the AUMF, before he was brought to trial. Not only is the length of his extrajudicial detention problematic (far exceeding the normal constitutional rule requiring presentment within 24 hours) but, under the administration’s view, he could have been held indefinitely without charge or access to court. How long, one might ask, would Warsame have remained in detention if the US government did not believe it had gathered enough evidence (through Warsame’s interrogations or other means) to charge him with a crime?

That Obama was criticized for bringing Warsame to the U.S. for trial shows just how much things have changed since 9/11 and the degree to which lawmakers, courts, and the public have accepted the legitimacy of the subjecting terrorism suspects to an alternative system that denies core protections of the Constitution.

Additionally, even if one accepts the legitimacy of military detention under the AUMF beyond the battlefield-circumstances recognized in the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld, Warsame’s detention raises serious concerns about the AUMF’s scope. Specifically, how was Warsame covered by the statute? Because he was “part of” al Qaeda? A part of AQAP (Al Qaeda in the Arabian Peninsula), which the administration considers an “associated force” within the meaning of the AUMF? While the criminal proceeding may raise interesting questions around Warsame's interrogations and the admissibility of any statements he made while in custody overseas, it is unlikely to address the legitimacy of the government's claimed military detention authority.

One additional point. That Obama was criticized for bringing Warsame to the US for trial (rather than keeping him on a ship or taking him to Guantanamo or Bagram) shows just how much things have changed since 9/11 and the degree to which lawmakers, courts, and the public have accepted the legitimacy of the subjecting terrorism suspects to an alternative system that denies core protections of the Constitution. Ironically, had someone like Warsame been brought to the US to face indictment in 2002, there would have been no corresponding outcry from the Right. I discuss this dynamic in the final chapter of my book, underscoring how each new incident involving terrorism reignites debates about practices like indefinite detention, military prosecution, and coercive interrogations and underscores the degree to which they have become accepted as a “new normal.”

The US Detention System Since 9/11: A Conversation (Part Two)

By Emily Berman & Jonathan Hafetz

August 10, 2011

This is the second installment in a three-part series. You can read the first conversation here.

Emily Berman:

There was a fascinating story in The Nation last month, reporting about a facility in Mogadishu, Somalia, where the CIA seems to be operating a semi-autonomous detention program in conjunction with Somali intelligence. According to The Nation, “the underground prison is officially run” by the Somali’s national security agency, but “US intelligence personnel pay the salaries of [Somali] intelligence agents and also directly interrogate prisoners.”

Is there any way to hold the government accountable for these deprivations of liberty?

One question these last two stories raise for me — and I’ll want to come back to this — is whether the current administration has a coherent detention policy, or if it’s operating on an ad hoc basis, and whether that’s a good or a bad thing.

But first, I’d like to ask you whether the writ of habeas corpus provides any protection from unlawful detention for prisoners like Ahmed Abdulkadir Warsame or the ones in Mogadishu? And if not, is there any way to hold the government accountable for these deprivations of liberty?

Jonathan Hafetz:

The facility highlights the problem of proxy detention — where the US outsources detention to foreign agents or colludes with those agents in order to minimize accountability.

The practice of proxy detention is not new. (In fact, along with the ACLU, I presently represent a US citizen named Amir Meshal in a lawsuit against four US officials who used foreign agents in Kenya, Somalia, and Ethiopia, to imprison him for four months in 2007 without access to his family or the courts).

The story about the facility in Mogadishu highlights both the importance and potential limits of habeas corpus. It underscores why habeas must be available to challenge all detentions by the United States, regardless of location, and why the habeas right must be viewed broadly to reach situations where the US exercises custody or control over a prisoner indirectly, through a foreign agent.

Obama's approach elevates executive discretion over the rule of law.

A district judge in Washington, DC previously construed habeas corpus to reach this type of detention (The case, which involved a proxy detention in Saudi Arabia, is entitled Abu Ali v. Ashcroft). While Abu Ali was an American citizen, the habeas right to challenge illegal detention should extend both to citizens and foreign nationals. Indeed, the Supreme Court's 2008 Boumediene v. Bush decision, which recognized Guantanamo detainees' constitutional right to habeas corpus, emphasizes that citizenship is only one of many factors involved in determining whether habeas should be available to a person held overseas.

One recurring problem is that it can be difficult in practice to establish the requisite level of US control over detention for the purposes of establishing habeas corpus jurisdiction, while judges can be reluctant to order discovery into the degree of US control when a prisoner is nominally in foreign custody. However, the danger of precluding such discovery outweighs any difficulties it poses, as it effectively permits the US to interrogate and imprison individuals without accountability or review — precisely the kind of situation where the worst abuses tend to occur.


I want to briefly go back to the Warsame case — the Somali detainee held and interrogated for two months on a navy ship and then brought to the US for prosecution. You’ve probably seen the letter that several congressional Republicans sent to President Obama protesting the way that Warsame was handled. The letter criticizes the President for failing to establish a “comprehensive detention system” outside of Afghanistan and calls on the President to define his administration’s policies on interrogation, detention, and prosecution of terrorists.

Do you think this administration has a coherent policy for dealing with suspected terrorists?


President Obama's approach to detention does, to be sure, suffer from a lack of consistency. While Obama has expressed a general preference for prosecuting terrorism cases in federal court, he has maintained the option to treat terrorism suspects militarily — by subjecting them to indefinite detention under the laws of war or prosecuting them in military commissions. In Warsame's case, exercising that option meant two months' of military detention followed by a federal criminal indictment. For others, including those at Guantanamo, it has meant perpetual confinement without trial or prosecutions in a second-class military justice system.

Obama's approach, as I've previously discussed here, gives far too much power to the government to circumvent or dispense with the fundamental constitutional protections provided in the federal criminal justice system. Who receives a federal trial? Who, by contrast, is subjected to the military regime of law-of-war detention or commission prosecution? Obama's approach allows the government to exercise the military option when it lacks evidence, when the evidence is tainted (for example, because it was obtained through torture or other illicit means), or even when the case is too difficult politically to prosecute in federal court (as illustrated by the administration's decision to abandon the prosecution of KSM and the other 9/11 co-conspirators in the face of a virulent political backlash).

Obama's approach, in short, elevates executive discretion over the rule of law. It is, however, certainly preferable to the approach of those lawmakers who would mandate military detention, thus barring the prosecution of Warsame and countless other suspects.

The US Detention System Since 9/11: A Conversation (Part Three)
By Emily Berman & Jonathan Hafetz
August 15, 2011

This is the third installment in a three-part series. You can read the first two conversations here and here.

Emily Berman:

We hear much less about detention operations in Afghanistan than we do about Guantanamo, but there are still thousandsof detainees in military custody in and around Bagram.

Moreover, rumors about a secret Bagram prison — one where detainees are held in isolation and that is off limits even to the Red Cross — persist.

What do we know about the state of American detention operations in Afghanistan, and what opportunities those detainees have to challenge the lawfulness of their detention?

Jonathan Hafetz:

Bagram has always played second fiddle to Guantanamo in terms of focusing public attention on human rights abuses by the US Government — even though, for many years, conditions at Bagram were worse.

Congress's current proposal requiring the military detention of terrorism suspects goes beyond anything it has done so far, and represents an unprecedented militarization of the US justice system.

Currently, there are many more prisoners at Bagram than Guantanamo, and some detainees at Bagram are held in secret — at least for limited periods of time. While conditions at Bagram, now known as Parwan, have improved, serious problems remain. Most importantly, detainees there are imprisoned without access to any court, whether US or Afghan. Although the US Supreme Court has recognized a constitutional right to habeas corpus review for detainees at Guantanamo, the Court has not extended that right to detainees at Bagram, and an appellate court has expressly rejected any such right. That Bagram is located in Afghanistan, where the US remains involved in an armed conflict, admittedly complicates court review. But the alternative — holding prisoners at Bagram indefinitely based only on a military tribunal hearing — is worse.

The arguments for habeas review at Bagram will grow stronger if, as I suspect, the US continues to hold at least some prisoners there even after troops withdraw and detention operations are turned over to the Afghan government. The continued detention of prisoners under these circumstances will make it more difficult to argue that Bagram is different from Guantanamo in any meaningful respect.


Another complaint, voiced by Republican lawmakers in the letter to President Obama raising questions about Warsame’s treatment, is that the administration’s actions “directly contradict pending legislation.” The pending legislation they refer to is the House version of the National Defense Authorization Act for FY 2012, which includes multiple restrictions on and requirements for the executive’s handling of suspected terrorists. Perhaps the most dramatic of these provisions requires that certain terror suspects be held in military detention and tried in military courts, rather than being held by US law enforcement entities and tried in criminal courts.

For a moment let’s leave aside the fact that the current Senate version of this bill does not include that provision, as well as the fact that the content of this “pending legislation” is likely to change before it reaches the President’s desk for signature. But regardless of whether this particular military-detention requirement is actually enacted, Congress has already imposed similar conditions. For example, there are restrictions regarding where and under what conditions the President may transfer detainees from Guantanamo, as well as restrictions on using Defense Department dollars to convert facilities on the US mainland into terrorist detention centers.

For many years, it seemed that Congress sat on the sidelines when it came to detention issues. What do you think about the ways in which it has decided to step in?


Other than passing the broadly worded Authorization for Use of Military Force just days after 9/11, Congress did little on detention issues until 2005. Since then, Congress has intervened several times, mostly in counter-productive, even destructive ways.

In 2005, and again in 2006, Congress sought to strip the federal courts of jurisdiction to consider the habeas petitions of Guantanamo detainees — an effort the Supreme Court ultimately ruled unconstitutional.

Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.

More recently, Congress effectively killed Obama's plan to close Guantanamo, by prohibiting the use of funds to transfer Guantanamo detainees to the mainland United States, as well as restricting the president's ability to transfer Guantanamo detainees to another country.

The current proposal requiring the military detention of terrorism suspects goes beyond anything Congress has done so far, and represents an unprecedented militarization of the US justice system. It's bad enough that the government need not prosecute terrorism suspects and provide individuals in US Custody with a fair trial. This proposal would actually prevent the president from doing so in many cases.

Congress's actions underscore the degree to which the debate over counter-terrorism policy has been distorted by fear and hijacked by political grandstanding. Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.


That point brings me to my last question, Jon. As we approach the tenth anniversary of 9/11, it seems that many of the rules surrounding habeas — where geographically does it extend, what categories of individuals may lawfully be detained, how definitively must the government prove a particular detainee’s connection to Al Qaeda or its affiliates — remain unanswered.

And this past term, the Supreme Court declined to exercise jurisdiction over any of the multiple detention-related cases that came before it. So the Court seems to have stepped out of the detention business, at least for the moment. At the same time, the situation in the world is getting more complicated. Afghanistan is less likely to serve as a terrorist base of operations, but other failed states like Somalia and Yemen seem to be vying to take its place. Al Qaeda proper seems to be in decline, but affiliated or copycat groups interested in attacking US interests continue to pop up.

As this complexity evolves, and in the absence of clear rules set forth by the Supreme Court, where do you think the future of habeas corpus is headed, and who is going to be writing the rules?


It does seem like we're entering a new chapter in the future of habeas corpus, with the tragic events of 9/11 now almost a decade behind us. While the legal battles in the “war on terror” have not always produced clear answers, and many important issues remain to be decided, I think several important lessons emerge.

Habeas, I believe, will remain relevant as we begin to focus on new questions, such as counter-terrorism operations in the Horn of Africa and Yemen. Despite its numerous shortcomings, habeas has proven one of the most important checks on executive power. It helped expose abuses at Guantanamo, enabled lawyers to visit the base and represent detainees, and provided some judicial oversight of what once had been a prison beyond the law.

At the same time, the “war on terror” litigation has underscored the vulnerabilities of habeas and the limits of courts generally. Too often, it seems, the executive was able to remain one step ahead of the “Great Writ,” evading accountability by transferring prisoners to new detention sites to which habeas did not extend or using other countries as proxies to mask US control and influence. Judges, moreover, have too often interpreted the habeas right narrowly and deferred excessively to the government. We can see this in the DC Circuit's recent rulings in the Guantanamo habeas cases, which sometimes seem little more than an exercise in rubber stamping executive power.