DETENTION Why What You Thought You Learned in Constitutional Law is Probably Wrong

Overview Criminal imprisonment Criminal imprisonment Administrative detention under the police power (quarantines) Administrative detention under the police power (quarantines) Class based detentions Class based detentions The peculiar institution of "legal" aliens The peculiar institution of "legal" aliens How these turn into PETTBOM and GITMO How these turn into PETTBOM and GITMO Why we do not want to provide legal process Why we do not want to provide legal process

Criminal Imprisonment The classic model The classic model Criminal due process Criminal due process Bail with limited exceptions Bail with limited exceptions Right to appointed counsel Right to appointed counsel Right to trial by jury Right to trial by jury Speedy trials Speedy trials Proof beyond a reasonable doubt Proof beyond a reasonable doubt Protection again unreasonable search and seizure Protection again unreasonable search and seizure Protection against self-incrimination Protection against self-incrimination Access to habeas corpus Access to habeas corpus

Roots of the Police Power For ten years prior, the yellow fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between New York and Philadelphia. (Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, (1849))

Administrative Detentions: Quarantine Model Protection of the public, not punishment Protection of the public, not punishment Limited rights under the US Constitution Limited rights under the US Constitution No appointed counsel No appointed counsel No bail No bail Proof by preponderance of the evidence Proof by preponderance of the evidence No trial by jury No trial by jury Lasts as long as the danger Lasts as long as the danger Can be done in prison Can be done in prison Access to habeas corpus Access to habeas corpus Deference to the agency Deference to the agency

Expansion of the Administrative Detention Model Material witnesses Material witnesses Bell v. Wolfish, 441 U.S. 520 (1979) Bell v. Wolfish, 441 U.S. 520 (1979) Bail Reform Act Bail Reform Act U. S. v. Salerno, 481 U.S. 739 (1987) U. S. v. Salerno, 481 U.S. 739 (1987) Redefining imprisonment for sex offenders Redefining imprisonment for sex offenders Allen v. Illinois, 478 US 364 (1986) Allen v. Illinois, 478 US 364 (1986) Kansas v. Hendricks, 117 S.Ct (1997) Kansas v. Hendricks, 117 S.Ct (1997) Key legal issue Key legal issue Is it punishment or prevention? Is it punishment or prevention?

Class Based Detentions Korematsu v. United States, 323 U.S. 214 (1944) Korematsu v. United States, 323 U.S. 214 (1944) Japanese on the WEST coast Japanese on the WEST coast The order was to move them inland, but the locals objected The order was to move them inland, but the locals objected Ex parte Mitsuye Endo, 323 U.S. 283 (1944) Ex parte Mitsuye Endo, 323 U.S. 283 (1944) The case that explains it all The case that explains it all The court ruled that a person could not be held if it was determined that he was not a threat The court ruled that a person could not be held if it was determined that he was not a threat

Combatants: Ex parte Quirin, 317 U.S. 1 (1942) The German Spy Case The German Spy Case Arrested in the U.S. Arrested in the U.S. One was a US citizen One was a US citizen Were to be tried by a military tribunal as unlawful combatants Were to be tried by a military tribunal as unlawful combatants United States Supreme Court ruled that unlawful combatants, even if U.S. citizens, could be tried by military tribunals United States Supreme Court ruled that unlawful combatants, even if U.S. citizens, could be tried by military tribunals Not overruled by Reid v. Covert, 351 U.S. 487 (1956) Not overruled by Reid v. Covert, 351 U.S. 487 (1956)

Immigrants: Legal and Illegal The Constitution gives congress plenary power over immigration. The Constitution gives congress plenary power over immigration. No constitutional right to enter or stay in the US No constitutional right to enter or stay in the US A naturalized citizen can be stripped of citizenship for fraud A naturalized citizen can be stripped of citizenship for fraud Immigration detention and deportation is an administrative proceeding Immigration detention and deportation is an administrative proceeding Process defined by congress Process defined by congress Few due process rights Few due process rights What does this mean in real life? What does this mean in real life?

Enemy Alien Act Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

PENTTBOM and GITMO PENTTBOM The FBI Investigation into 9/11 Rounded up about 5,000 young Muslim men Deported most of them with any technical visa problems Detained them for long period in poor conditions with limited or no access to counsel GITMO

Why Not Give Everyone Habeas Corpus? What does habeas corpus mean? Do you automatically get out? Do you get to try your case? Then why worry about it? The importance of isolation Human interrogation depends on it What does a lawyer tell a client? What else can a lawyer do? If you give them habeas corpus, do you have to torture them?