Coauthored with Zaahira Wyne. Brookings Institution, December 16, 2008 The following report represents an effort both to document and to describe in as much detail as the public record will permit the current detainee population in American military custody at the Guantánamo Bay Naval Station in Cuba. Since the military brought the first detainees to […]
Archive | 2008
Nuts and Deadbolts: A Blueprint for the Closure of Guantanamo Bay
Co-authored with Jack Goldsmith, Slate, December 8, 2008 President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center. Notwithstanding the news this morning that Khalid Sheik Mohammed and four others want to confess their guilt in the 9/11 plots, closing the Cuban detention center is easier said than done. Closing […]
Wrenching Choices on Guantanamo
The Washington Post, November 21, 2008 Secretary of Defense Robert Gates came into office wanting to close the American detention operation at Guantanamo Bay, Cuba. Nearly two years later, Guantanamo is still there. Secretary of State Condoleezza Rice has said she wants to close it. Guantanamo will outlast her. Yet, to watch the post-election Democratic […]
Eye To Eye: Closing Gitmo
CBS, November 14, 2008 Summary: Three possible strategies for the Obama administration to close the prison at Guantanamo Bay.
One Side Only
Policy Review – Hoover Institution, October 1, 2008 Jane Mayer begins her new bestseller with a subtitle that, even before the book’s opening page, warrants a moment’s reflection: On The Dark Side’s cover appear the words: “The Inside Story of How the War on Terror Turned into a War on American Ideals.” Mayer’s subtitle pulls one […]
Seven Years Later: Complacency
The New Republic, September 11, 2008 America has grown complacent, and how could it have done otherwise? For years, we have not felt the war our government insists remains a reality. We keenly feel two related wars, the ones in Iraq and Afghanistan. And the war on terror has certainly persisted as a legal reality, and in some sense also as a civic reality. […]
Testimony on American Interrogation Policy in the War Against Terrorism
Testimony before the House Committee on the Judiciary, “American Interrogation Policy in the War on Terrorism,” July 17, 2008 Thank you, Mr. Chairman and members of the committee, for inviting me to testify concerning American interrogation policy in the war against terrorism. I am a Fellow in Governance Studies and Research Director in Public Law at […]
How Do We Bring Osama Bin Laden to Justice? America is Clueless
NY Daily News, July 5, 2008 News flash: Osama Bin Laden and his deputy Ayman al-Zawahiri are captured in Pakistani tribal areas and turned over to American custody. What would happen next? Celebratory news stories, cries of a major victory in the war on terrorism – and total confusion. This is the shameful truth: Six […]
Congress’s Guantanamo Burden
The Washington Post, June 13, 2008 The key words in Justice Anthony M. Kennedy’s Guantanamo opinion do not involve the history of habeas corpus, the territorial status of Guantanamo Bay or the accountability of the executive branch to the rule of law. They appear on the opinion’s penultimate page and are unlikely to attract much […]
Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System
Testimony before the Senate Committee on the Judiciary, “Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System,” June 4, 2008 Thank you, Mr. Chairman and members of the committee, for inviting me to testify concerning what is probably the single most important unresolved legal policy challenge affecting America’s confrontation with international terrorism: The […]
State of Civil Unions: California Court Strikes Down Marriage Ban
The New Republic, May 20, 2008 “Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president,” the Obama campaign stated oh-so-carefully in response to this week’s California Supreme Court decision striking down the state’s ban on gay marriage.” He […]
Unusual Nonsense: Supreme Court’s Decision about “Cruel and Unusual Punishment”
The New Republic, April 28. 2008 The Supreme Court recently gave the country an object lesson in the absurdity of the Eighth Amendment – at least, as it is currently understood by the justices. On a single day, it handed down a decision upholding as constitutional the specific mixture of drugs by which thirty states […]
John Yoo Interrogation Memo
The New Republic, April 8, 2008 The disclosure of the former Bush administration lawyer John Yoo’s “torture memo” this week was, in most senses, an exercise less in news than in archaeology. The public has long known the memo existed. And it has also known, in broad strokes, what it says: that military interrogators aren’t […]
What Happens If the Supreme Court Recognizes Individual Gun Rights? Not Much.
The New Republic, March 21, 2008 One thing seemed clear from Tuesday’s Supreme Court oral arguments in District of Columbia v. Heller: The justices are poised to recognize that the Second Amendment confers on individual Americans the right to own guns. The court’s conservatives–save Justice Clarence Thomas, who maintained his customary silence at arguments–evinced little […]
Trial by Fire: How Military Commissions Work and Why They Fail
The New Republic, February 14, 2008 At long last, one way or another we’re about to learn a great deal about military commissions. The charges prosecutors filed Monday against Khalid Sheikh Mohammed and five other alleged September 11 conspirators cannot proceed credibly to trial in anything less than a viable court system. The evidentiary questions […]
Mukasey Has the Capacity to Be a Great Attorney General, But Not the Time
The New Republic, January 31, 2008 Attorney General Michael Mukasey frustrated Democrats yesterday when he refused, again, to tell the Senate Judiciary Committee whether water-boarding counts as torture or is otherwise prohibited by law. At the committee hearing, he declared the question hypothetical, since the CIA no longer uses the tactic. And he declared as […]
Gun Shy: The Justice Department Weighs in on the Second Amendment
The New Republic, January 25, 2008 Shortly after taking office, the Bush administration dropped a love bomb on gun rights enthusiasts nationwide. In May 2001, then-Attorney General John Ashcroft wrote a letter to the National Rifle Association stating “unequivocally my view that the text and the original intent of the Second Amendment clearly protect the […]
The Death Clock: Don’t Count Out the Death Penalty Yet
The New Republic, January 7, 2008 These are heady days for anti-death penalty activists. New Jersey has taken the plunge and legislatively repealed capital punishment–becoming the first state in the modern era to do so. Today, the Court will hear arguments over whether the specific drug cocktail used in lethal injections constitutes cruel and unusual […]
Benjamin Wittes 