Law Commons^™

The Legal Dilemma Of Guantánamo Detainees From Bush To Obama, Linda A. Malone

Linda A. Malone

No abstract provided.

The Legal Dilemma Of Guantanamo Detainees From Bush To Obama, Linda A. Malone

Linda A. Malone

The stage for the Guantanamo detainees’ commission proceedings was set by the interplay between the Executive’s detention powers and the Judiciary’s habeas powers. The Bush administration turned to Congress to provide less than what was required by the court, instead of the minimum deemed necessary to comply with each decision, or to explore another legal argument for not complying. This article examines how the law for the Guantanamo detainees has been shaped by the US courts and by Congress. The article begins by observing the guidelines issued by the Supreme Court for compliance with the constitutional and humanitarian law requirements, …

Rights Disappear When Us Policy Engages Children As Weapons Of Deterrence, Craig B. Mousin

Craig B. Mousin

Alternatives To Immigration Detention, Fatma E. Marouf

Fatma Marouf

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

Rebecca Sharpless

Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi

Mark L Noferi

"I Still Live In Guantanamo!" Human Rights Abuses Continue After Detainees Leave Guantanamo, Peter Honigsberg

Peter J Honigsberg

In November 2014, the U.S. government transferred Yemeni national Hussein Al-marfadi, from the Guantanamo Bay, Cuba detention center to the nation of Slovakia. He had never been charged with a crime, and had been cleared for release nearly five years before his transfer to Slovakia. Three months later, in February 2015, the Witness to Guantanamo project (W2G) interviewed Al-marfadi in Zvolen, a town in central Slovakia. Although physically and psychologically scarred from his 12 years of detention, Al-marfadi was an engaging, even-tempered and thoughtful man.

However, when W2G asked Al-marfadi about his life today, his composure and even-tempered tone transformed …

Linguistic Isolation: A New Human Rights Violation Constituting Torture, And Cruel, Inhuman And Degrading Treatment, Peter Honigsberg

Peter J Honigsberg

Sunnat was placed in a cell among other detainees in the general prison population. He spoke neither Arabic nor English, the linguae francae of the prison and the only languages spoken by the detainees in neighboring cells. Consequently, for much of his time in Guantanamo, Sunnat talked to no one. He awoke each morning and cried. Sunnat could, of course, reach out and communicate through eye contact, hand signs and facial expressions. However, Sunnat never had meaningful conversations with his neighbors.

Absence of meaningful human contact is a characteristic of isolation and a source of suffering caused by isolation. Sunnat …

The Immigration Detention Risk Assessment, Mark Noferi, Robert Koulish

Mark L Noferi

In early 2013, U.S. Immigration and Customs Enforcement (“ICE”) deployed nationwide a new automated risk assessment tool to help determine whether to detain or release noncitizens pending their deportation proceedings. Adapted from similar evidence-based criminal justice reforms that have reduced pretrial detention, ICE’s initiative now represents the largest pre-hearing risk assessment experiment in U.S. history—potentially impacting over 400,000 individuals per year. However, to date little information has been released regarding the risk assessment algorithm, processes, and outcomes.

This article provides the first comprehensive examination of ICE’s risk assessment initiative, based on public access to ICE methodology and outcomes as a …

The Choice Of Law Against Terrorism, Mary Ellen O'Connell

Mary Ellen O'Connell

The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.

A People's Guide To U.S. Immigration Law, Irene Scharf

Irene Scharf

The goal of this book is to help those who are already here to understand their rights, responsibilities, and choices under the ever-more complicated immigration laws. In these insecure times, it is crucial to understand one's legal rights during work and home raids, how to act if charged by the authorities, how to avoid being deported/removed, how to decide whether to hire a lawyer and if hiring one how to choose one, how to assist one's lawyer to reduce fees, and much more.

The United States Supreme Court Rulings Of Detention On "Enemy Combatants" - Partial Vindication Of The Rule Of Law, Douglass Cassel

Douglass Cassel

No abstract provided.

Pretrial And Preventive Detention Of Suspected Terrorists: Options And Constraints Under International Law, Douglass Cassel

Douglass Cassel

No abstract provided.

International Human Rights Law And Security Detention, Douglass Cassel

Douglass Cassel

This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally …

The Geography Of The Battlefield: A Framework For Detention And Targeting Outside The 'Hot' Conflict Zone, Jennifer Daskal

Jennifer Daskal

The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state’s authority to use lethal force and to detain without charge. To date, the legal and policy discussions on this issue have resulted in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict — and broad detention and targeting authorities — extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, …

Uprooting The Cell-Plant: Comparing United States And Canadian Constitutional Approaches To Surreptitious Interrogations In The Detention Context, Amar Khoday

Dr. Amar Khoday

No abstract provided.

Sexual Abuse Of Male Juveniles In Detention Centers By Female Correction Officers And Their Peers – An Empirical Study, Paul Cook

Paul Cook

This Comment both reveals the nature and dynamic of sexual abuse in the male juvenile detention centers and dispels common misconceptions we had of it. By comparing and contrasting the BJS male and juvenile incarceration data with previously projected statistics, This Comment subjected these sets of data through statistical formulas. From that, it has made several findings.1) Male juveniles appear to be more frequently abused when detained. 2) Staff are the primary perpetrators. 3) There are both overt and non-overt traits that correlate to higher rates of sexual abuse. 4) White male juveniles have a higher correlation to sexual abuse …

Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11, Daniel Kanstroom

Daniel Kanstroom

In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence of immigration and …

Reaping The Harvest: The Long, Complicated, Crucial Rhetorical Struggle Over Deportation, Daniel Kanstroom

Daniel Kanstroom

No abstract provided.

Temporary Detention Order And Civic Rights, Hossien Maleky Zadeh

hossien Maleky Zadeh

One of the most important decisions made by judicial authorities is to obtain securities from the defendant in the process of proceeding of criminal actions; among the security orders, detention order of defendant is of great significance, because on one hand this order deprives people of one of their most important civic rights, namely of their liberty, and is in contradiction with the Presumption of Innocence, the doctrine which, under Article 37 of the Constitution of I.R. of Iran, has been recognized; and on the other hand, this order may set the defendant at large while his delinquency has not …

Rethinking Immigration Detention, Anil Kalhan

Anil Kalhan

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated - to the …

The High Cost Of Freedom: A Legal And Policy Analysis Of Shelter Detention For Victims Of Trafficking, Anne T. Gallagher, Elaine Pearson

Anne T Gallagher

In countries around the world it is common practice for victims of human trafficking who have been “rescued” or who have escaped from situations of exploitation to be placed and detained in public or private shelters. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years. This article uses field-based research to document this largely unreported phenomenon. It then considers the international legal aspects of victim detention in shelters and weighs the common justifications for such detention from legal, policy, and practical perspectives.

Systemic Failure: Mental Illness, Detention, And Deportation, Bill Ong Hing

Bill Ong Hing

Our detention and deportation system failed Tatyana Mitrohina. She was born in Russia with heart defects and deformed hands. She was rejected by her parents for many years, spending her infancy in hospitals and institutions. Though she was later able to move back home, her parents abused her and then abandoned her. She immigrated to the United States as a young teen, adopted by U.S. citizens. After more than a decade, she had a child of her own, whom she abused. Tatyana was diagnosed with mental illness. Although she was convicted of child abuse, the state court recommended medication, counseling, …

Three Strikes And You're Outside The Constitution: Will The Guantanamo Bay Alien Detainees Be Granted Fundamental Due Process?, Michael Greenberger

Michael Greenberger

The United States Supreme Court has agreed to take up its first case arising from the War on Terror by hearing the consolidated appeals of two groups of foreign aliens who are or who had been detained at the United States Guantanamo Bay Naval Base, Cuba: Rasul v. Bush (No. 03-334) and Al Odah v. United States (No. 03-343). The cases stem from the United States' capture of several hundred prisoners in Afghanistan and Pakistan and their subsequent imprisonment at Guantanamo Bay. The prison began operation in January 2002, and approximately 90 detainees have been freed up to this time, …

Indefinite Material Witness Detention Without Probable Cause: Thinking Outside The Fourth Amendment, Michael Greenberger

Michael Greenberger

A constitutional issue recently addressed by the United States Court of Appeals for the Second Circuit in United States v. Awadallah, 349 F.3d 42 (2003), has not received the widespread attention of high-profile litigation concerning the Justice Department's other controversial counter-terrorism policies. It is equally important. The issue arises out of Attorney General Ashcroft's announcement shortly after the terrorist attacks of September 11, 2001 that the aggressive detention of material witnesses [was] vital to preventing, disrupting or delaying new attacks. Since that time, the Department of Justice has used the federal material witness statute (18 U.S.C. Section 3144) to arrest …

The Case Against National Security Courts, Stephen I. Vladeck

Stephen I. Vladeck

Since September 11, calls for a hybrid national security court to handle special terrorism cases have taken on a new-found prominence, as courts and policymakers alike have struggled with the complex series of legal and logistical problems posed by the U.S. government's detention of enemy combatants, especially the hundreds of non-citizens so detained at Guantanamo Bay, Cuba. National security courts are, for many, an increasingly attractive compromise solution to the seemingly irreconcilable division between those who believe that terrorism suspects are not entitled to the traditional criminal process and those who believe not only that they are, but that any …

Borders Erected Around Unlimited Right To Detain, Susan Harris Rimmer

Susan Harris Rimmer

Fourteen years after the federal ALP introduced the current legal basis of detention, Immigration Minister Senator Chris Evans has outlined the new approach to detention agreed by the Rudd Labor Government. In essence it has committed itself to seven ''values'', the first being that mandatory detention remains an ''essential component of strong border control''. But the second value sets out the categories of those to whom mandatory detention will apply. They are: all arrivals for health, identity and security checks, and to them only for a short time; people who present an unacceptable risk to the community; and people who …

Snatch And Grab Ops: Justifying Extraterritorial Abduction, Gregory Mcneal, Brian Field

Greg McNeal

The United States government is actively engaged in a search for individuals believed to have killed American citizens and destroyed American property. As most of these individuals live openly in foreign states hostile to the United States, achieving extradition often proves impossible. Despite repeated diplomatic efforts to secure the transfer of these terrorists to America, many continue to operate in foreign states under the protection of the host country's continued denial of the terrorist's presence within their borders. The problem of bringing these individuals to justice is further complicated by the fact that the United States is rarely able to …

Military Commissions Act Of 2006, Arsalan M. Suleman

Arsalan Suleman

On October 17, 2006, President Bush signed into law the Military Commissions Act of 2006 (MCA). Congress passed the MCA to authorize the trial by military commissions of detained terrorism suspects after the Supreme Court's decision in Hamdan v. Rumsfeld invalidated the military commissions previously established pursuant to a 2001 military order from President Bush. The MCA adds chapter 47A to title 10 of the U.S. Code to give statutory authorization for the military commissions. This Recent Development explores some of the more controversial aspects of the MCA, especially those sections that respond to the Court's Hamdan decision. The note …