Of Civil Wrongs and Rights: \u3cem\u3eKiyemba v. Obama\u3c/em\u3e and the Meaning of Freedom, Separation of Powers, and the Rule of Law Ten Years After 9/11

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs suggest that this commitment is either waning or was never as strong as scholars thought. About a year and a half before the tenth anniversary of the terrorist attacks of September 11, 2001, the United States Supreme Court was primed to hear oral arguments in the Uighurs’ case known as Kiyemba v. Obama. The issue in this case was whether the Uighurs, who were concededly being detained illegally, would be released from Guantanamo Bay. As a result of the government’s latest delay tactics, the Court never heard the merits of the case. Had it done so, the Court, arguably, would have established the contours of a constitutionally required habeas remedy for foreign nationals whose indefinite detention had been judicially declared illegal and no other option but release into the continental interior of the United States is possible. The Court’s dismissal of the Uighurs previously granted cert petition thus signaled the beginning of the end of the Court’s landmark “war-on–terror” line of precedential cases culminating in the evisceration of its 2008 seminal case of Boumediene v. Bush. With the D. C. Circuit Court of Appeals decision now reinstated in which the court had held in 2009 that habeas courts had no jurisdiction to order the release of foreign nationals under such circumstances because it was an immigration case triggering the political branches’ plenary power over which such matters are largely immune from judicial intervention. But Kiyemba v. Obama is not an immigration case. The Uighurs were brought here involuntarily as a result of the government’s counterterrorism policies, the implementation of which the Court had declared unlawful over the course of a four year period beginning with Rasul v. Bush in 2004. The D.C. Circuit Court holding, which still stands, was erroneous because the Uighurs never sought to immigrate to this country; their filing of writs of habeas corpus placed the matter solidly in the area of granting constitutionally required habeas relief which a habeas court has jurisdiction to decide. Through political machinations and influences at all levels of government, however, the Supreme Court has more recently decided to end its role of protecting the individual rights of Guantanamo Bay detainees with a series of denials of cert.-petitions without a single dissent authored to voice concerns about the beginning of the end of the Republic Benjamin Franklin once said we had but only if we could keep it. And although most of the original group of Uighurs has subsequently been relocated to other countries, the two still remaining have now entered their second decade of unlawful detention

Courts and the executive in wartime: A comparative study of the American and British approaches to the internment of citizens during World War II and their lessons for today

This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of citizens, and the manner in which British and American courts reviewed challenges brought by those detained during the war. Comparing the experiences of the two countries reveals that in both cases the courts deferred extensively to the political branches when it came to reviewing challenges to the wartime detention policies, essentially staking out roles that left them largely relegated to the sidelines of public debates over the propriety of internment policies. A comparison of the British and American experiences also reveals that, as the war continued, the two chief executives struck decidedly different positions as to the wisdom and lawfulness of detention policies directed at citizens. In the United States, Roosevelt ignored the legal advice of many of his key advisers regarding the unconstitutionality of the detention of Japanese American citizens and-again against the advice of his advisers-later delayed the closing of the internment camps until after the 1944 election. By contrast, Churchill-who operated in a different legal context that granted him greater powers than his American counterpart-came to view such policies as inconsistent with British constitutional tradition and became a crucial voice urging the termination of such detentions. The Article then attempts to understand both why the two executives charted different courses on this issue as the war unfolded and whether there are any lessons to be drawn from these events with respect to how we should think about the separation of powers during wartime today. Focusing on the British experience during the war, Churchill's change of course suggests that the executive can and sometimes will take the lead in declaring and protecting a country's constitutional values without prodding by the courts, even in wartime, and even in the absence of legal compulsion. But as is explored in the pages that follow, the British experience may be a particularly British story and more generally one that differed in significant ways from the American story. This, in turn, calls into question just how much the British experience during the war should inform debates over the separation of powers in American constitutional law. The American experience during the war, moreover, proves a cautionary tale. Specifically, it reveals a series of failings on the part of the executive branch to acknowledge and engage with the facts on the ground and honor long-accepted constitutional traditions in formulating wartime policies. This example therefore suggests that the executive branch is ill equipped to self-regulate on this score in times of war. These failings in turn call into question the common practice of courts to defer extensively to the executive on matters of national security and more generally implicate fundamental questions about the judicial role in a constitutional democracy. Although grounded in events that took place over seven decades ago, this study is undertaken for a very timely purpose. Once again, we live in a time in which the executive branch has argued that its decisions ostensibly predicated upon heightened concerns about national security should receive extensive, if not complete, deference from the Supreme Court. In addressing such arguments now and in the future, the Court would be wise to remember how judicial deference to executive branch assertions on matters of national security played out during World War II

Executive Order 13492: Legal Borderlands

On January 22, 2009, newly inaugurated President Barack Obama implemented Executive Order 13492. The order refers to the legal disposition of detainees at the Guantánamo Bay Naval Base and the termination of the detention center. The Executive Order lists five possible options to close Guantánamo Bay and to otherwise try and place current prisoners elsewhere: prosecution under military law, prosecution under federal law, permanent detainment, deportation and release. Still, Guantánamo Bay remains open. Guantánamo detainees exist in a legal limbo without formal charges and trial. Executive Order 13492 was created to place them elsewhere and close the detention center

Criminal Justice Collapse: The Constitution After Hurricane Katrina

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal system after Hurricane Katrina. Not only did this perfect storm illuminate how unprepared our local criminal systems may remain for a severe natural disaster or terrorist attack, but it raised unique and underexplored constitutional questions. We argue that constitutional criminal procedure failed to serve its protective role during this emergency, while deferential rules rooted in federalism had the unanticipated effect of hindering provision of critical federal emergency assistance, and perhaps most important, longstanding local neglect rendered the system vulnerable to collapse. We conclude by imagining systems designed to safeguard the provision of criminal justice during emergencies

Criminal Justice Collapse: The Constitution After Hurricane Katrina

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal system after Hurricane Katrina. Not only did this perfect storm illuminate how unprepared our local criminal systems may remain for a severe natural disaster or terrorist attack, but it raised unique and underexplored constitutional questions. We argue that constitutional criminal procedure failed to serve its protective role during this emergency, while deferential rules rooted in federalism had the unanticipated effect of hindering provision of critical federal emergency assistance, and perhaps most important, longstanding local neglect rendered the system vulnerable to collapse. We conclude by imagining systems designed to safeguard the provision of criminal justice during emergencies

A Broad-Coverage Challenge Corpus for Sentence Understanding through Inference

This paper introduces the Multi-Genre Natural Language Inference (MultiNLI) corpus, a dataset designed for use in the development and evaluation of machine learning models for sentence understanding. In addition to being one of the largest corpora available for the task of NLI, at 433k examples, this corpus improves upon available resources in its coverage: it offers data from ten distinct genres of written and spoken English--making it possible to evaluate systems on nearly the full complexity of the language--and it offers an explicit setting for the evaluation of cross-genre domain adaptation.Comment: 10 pages, 1 figures, 5 tables. v2 corrects a misreported accuracy number for the CBOW model in the 'matched' setting. v3 adds a discussion of the difficulty of the corpus to the analysis section. v4 is the version that was accepted to NAACL201