In the fall of 2001, the Bush administration was looking for a place to imprison and interrogate alleged al Qaeda members away from the prying eyes of other countries and insulated from the supervision of United States courts. The Defense Department believed that the Naval Base at Guantánamo Bay, Cuba might work, so it asked the Justice Department’s Office of Legal Counsel (OLC) whether federal courts would entertain habeas corpus petitions filed by prisoners at Guantánamo, or whether they would dismiss such petitions as beyond their jurisdiction. On December 28, 2001, OLC responded with a thorough and balanced analysis of how the federal courts were likely to resolve the jurisdictional question. The memorandum prepared by OLC explained the arguments against such jurisdiction, but it also explored possible strengths in the opposing position. The memorandum predicted that federal courts would not exercise jurisdiction but explained the risk of a contrary ruling. Acting in reliance on this memorandum, the government started imprisoning and interrogating alleged al Qaeda members at Guantánamo the following month, cognizant of the risk that a federal court might find habeas jurisdiction.
In Grutter v. Bollinger, law student amici provided significant support for the University of Michigan’s use of race as a factor in law school admissions. Although Grutter did not specifically refer to any of the briefs submitted by law students, the Court’s reliance on diversity interests echoed the students’ emphasis on the educational benefits of a diverse classroom and the instrumental benefits of a diverse legal profession. On the whole, the Court’s analysis in Grutter broke relatively little new ground, since it closely followed Justice Powell’s endorsement of diversity as a compelling interest in Regents of the University of California v. Bakke twenty-five years earlier.
The Intelligence Reform and Terrorism Prevention Act of 2004 (the “Act”) effected one of the most significant changes since 1947 in the organization of the intelligence community. Title III of the Act reorganized the entire national security clearance system, although the subject received practically no attention in public discussion during the 9/11 Commission hearings. Because this change was not fully explored in either the House or Senate hearings or during floor debate, Title III includes contradictory provisions concerning the assignment of responsibilities for security clearance policies and procedures.