Chapter 24 - Civil Detention Of Terrorist Suspects

How are the legal rights of non-citizens different from citizens?

How do the legal rights of non-citizens change when their visa expires or they otherwise violate the terms of their stay in the US?

Can non-citizens be deported for low level crimes?

How was this used in the PENTTBOM investigations?

What is a material witness?

Can they be held in the same way as criminals?

How was this used in the PENTTBOM investigations?

Who did the ‘‘Absconder Apprehension Initiative’’ target?

Why isn't this unconstitutional as profiling by national origin?

What was the worry about crop dusters?

Was the FBI careful to distinguish between actual terrorist subjects and persons only incidentally picked up as part of the ‘‘Absconder Apprehension Initiative’’ and other programs?

Did the INS properly notify the detainees of the charges against them?

The INS did not consistently serve the September 11 detainees with notice of the charges under which they were being held within the INS’s stated goal of 72 hours. The review found that some detainees did not receive these charging documents (called a ‘‘Notice to Appear’’ or NTA) for more than a month after being arrested. This delay affected the detainees’ ability to understand why they were being held, obtain legal counsel, and request a bond hearing.

Why is this a problem?

What was the ‘hold until cleared’’ policy and what did it result in?

How were detainees treated at the MDC facility?

What was the communications blackout?

How often were they allowed to call a lawyer?

Did the government hide where they were kept?

Was this allowed by government policy?

What is the Terry v. Ohio standard for a police stop?

How long can a person be held on a Terry stop?

What is the rule for an INS stop?

Can aliens be arrested and held while the INS sorts out their status?

Can they be held indefinitely before being deported?

What does Zadvydas tell us about how the standard for detention of an alien can change in a terrorist investigation?

What standard of proof did the FBI want in detention cases?

What are the standards for justifying a detention in Denmore v. Hyung Joon Kim, 538 U.S. 510 (2003)?

What about the "breaking windows" theory - people who commit one crime are more likely to commit others?

Is it alright to round up the usual suspects?

What are the standards for detention from United States v. Salerno, 481 U.S. 739 (1987)?

How did the court classify the detention in United States v. Salerno?

Does the Bail Reform Act at issue US v. Salerno preempt other standards for the detention of terrorist subjects?

What did the Emergency Detention Act. of 1950 authorize?

What did the justice department do to implement the act?

Are these still operational?  Has the government built more?

What is the text of the Non-Detention Act that repealed the Emergency Detention Act?

Does this really provide much protection?

Who can be held as a material witness?

What alternative to incarceration does the statute provide?

What does the statute provide about delay in releasing the witness?

How did the government abuse this in the PENTTBOM investigations?

NB - Bell v. Wolfish, 441 U.S. 520 (1979), found that material witnesses could be held and treated the same as regular inmates, rejecting the notion that because they were not accused of crimes they were entitled to more humane treatment.

What did Mary Jo White, former U.S. Attorney for the Southern District of New York, say about preventive detentions?

In Turkmen v. Ashcroft, 2006 WL 1662663 (E.D.N.Y. June 14, 2006), a group of post-9/11 immigration detainees, all but one of whom were Muslims of Middle Eastern origin, challenged their detention in part on the Fourth Amendment ground that they were really detained for criminal investigation without probable cause.

How did the court rule on their claims that the immigration charges were pretextual?

What was their equal protection claim?

How did the court rule on their equal protection claim?

Why isn't this ethnic profiling?

What detention powers does the Patriot Act provide?

What is the standard for opposing bond for immigration cases?

How were INS lawyers put in an ethical bind on this?

What does Denmore v. Hyung Joon Kim, 538 U.S. 510 (2003), tell us about the due process standards for detention of criminal aliens?

How does the right of immigration detainees to counsel differ from that of criminal defendants?

What did the court rule on the request by third party organizations to information about the identity and status of detainees to assure that they had access to counsel?

What does right does the Vienna Convention on Consular Relations give a foreign arrestee?

Was this complied with?

Since this is a reciprocal agreement, why should the US care about whether foreign countries abide by it?

What did Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006), say about whether failure to comply with this treaty was grounds for invoking the exclusionary rule?

What are the rights of detainees under the International Covenant on Civil and Political Rights?

What does the Military Order on detention direct the Secretary of Defense to do?

What is the USA PATRIOT Act Preventive Detention Provision?

How would you analyze whether this overrides the detention provisions in the Patriot Act?

Chapter 25 - Suspending the Great Writ

What does the Latin "habeas corpus" mean?

Where did the right of habeas corpus originate?

Is it provided for in the US constitution?

What are the basic requirements for habeas corpus?

What are other types of administrative detentions where habeas corpus is important?

Does the constitution provide that the writ can be suspended?

Does it clearly specify who can suspend it?

Why was suspending habeas corpus such an issue in the Civil War?

What did Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) say about who had the right to suspend the write?

Ex Parte Milligan, 71 US 2 (1866)

Where did this happen?

Was Milligan a rebel soldier?

How was he arrested and tried?

Did the court affirm the writ of habeas corpus?

Why did the court say that whether or not the president's war powers authorized the suspension of the writ, it could not be done in this case?

Why does this also prevent the use of a military tribunal?

What are the limits of congressional power to limit the jurisdiction of the United States Supreme Court?

Where does the power to review come in other cases?

Can this act be changed?

What are the arguments pro and con on whether Congress can prevent the United States Supreme Court from reviewing petitions for habeas corpus?

Does the nature of the underlying crime affect whether Congress can limit the court's jurisdiction?

Ex Parte Quirin, 317 US 1 (1942)

Why did the United States Supreme Court uphold a military tribunal in Quirin, which was tried in the US during WW II?

US Courts have Jurisdiction of Claims of Foreign Detainees - Rasul v. Bush, 124 S.Ct. 2686 (2004)

What was the key legal question in Rasul?

What was Scalia worried about in Rasul?

Would Rasul apply in Iraq?

What does the Detainee Treatment Act of 1995 say about habeas corpus?

Hamdi v. Rumsfeld, 2004 WL 1431951 (2004)

Where was Hamdi arrested?

Where was Hamdi born?

Why does this take him out from under the Detainee Treatment Act of 1995?

When can the government detain a citizen under the military order?

NB - one of the Quirin spies was a US citizen

What was the procedural reason for the ruling allow review in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)?

What did Congress do to fix this?