Tuesday, March 15, 2011
Jonathan Hafetz has posted Terrorism as Crime: Toward a Lawful and Sustainable Detention Policy (Jonathan Hafetz, HABEAS CORPUS AFTER 9/11: CONFRONTING AMERICA'S NEW GLOBAL DETENTION SYSTEM, Chapter 12, NYU Press, 2011) on SSRN. Here is the abstract:
The book from which this chapter is excerpted traces the history of the habeas corpus litigation after 9/11 that challenged the military detention and trial of prisoners in the "war on terror." Preceding chapters make the case for a broad conception of habeas corpus review, discussing the gaps left by the Supreme Court's decision in Boumediene v. Bush and arguing why habeas jurisdiction should extend to any detention by or at the behest of the United States. This chapter explains why habeas corpus review also is, in many respects, the start, not the end, of the conversation about law and national security. The chapter thus addresses a question at the heart of much of the habeas corpus litigation: who may be detained as a combatant and what is the legitimate scope of the government's military detention power. The chapter advocates a criminal law model rather than a military model in the treatment of suspected terroists. The chapter thus considers and rejects arguments for indefinite executive detention, military commissions, or other alternative forums to the criminal justice system, such as national security courts. Finally, the chapter describes how the criminal justice system provides an important check not only against unlawful detention but also against torture and other mistreatment.