Tag Archives: Habeas Corpus

Preventive Detention and Preventive Warfare: U.S. National Security Policies Obama Should Abandon

At the January 2009 Association of American Law Schools’ Section on National Security Law panel discussion, I and others urged the incoming Obama administration to make a clear and decisive break with the Bush administration’s national security policies. Six months later, the new Administration has not done so. Rather, it has acted in a contradictory manner: boldly asserting in its first days that it would ban torture and close Guantánamo, but in practice continuing many of the Bush antiterrorism policies. President Obama’s major speech on Guantánamo and other national security issues reiterated his desire to close Guantánamo, but also argued that the United States could hold detainees in custody indefinitely without trial or try them by military commissions. The Administration has adopted the Bush administration position that detainees held in U.S. custody in Afghanistan indefinitely have no right to seek habeas corpus in U.S. courts. It has also continued to assert the state secrets privilege to attempt to block lawsuits seeking accountability for extraordinary rendition and torture.

National Security Law Advice to the New Administration

By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror” …