How Has America’s Detention System Changed Since 9/11?

As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz assess an unjust detention regime, the role of habeas corpus, and how the Warsame case underlines political tensions at the heart of our approach to terrorism. This is the first in a series of conversations that we will post in the coming days.

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?  

—Emily Berman

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 U.S. 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.

—Jonathan Hafetz

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 U.S. 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 U.S. 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 U.S. 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?

—Berman

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 U.S. 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 U.S. 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 U.S. 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 U.S. 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.”

—Hafetz