\u3ci\u3eZiglar v. Abbasi\u3c/i\u3e and the Demise of Accountability

Part I of this Article discusses Ziglar in light of the Court’s other cases challenging aspects of the executive’s conduct in the struggle against terrorism. Part II compares Ziglar with other case law that suggests that the Ziglar Court’s focus on the potential availability of injunctive relief is not of central importance to its dismissal of the Bivens claims. This Article continues in Part III with a historical discussion of official accountability for unconstitutional conduct during times of national crisis or exigency and early leaders’ views regarding such official accountability, and provides instances where unconstitutional official conduct was met with damages liability. Finally, this Article concludes that Ziglar is at odds with the basic precepts of the framers’ view of the judicial role in addressing official claims of necessity during times of national emergency or serious crisis

Fundamental Norms, International Law, and the Extraterritorial Constitution

This Article argues that the functional test articulated in Boumediene v. Bush, which determines whether the Constitution\u27s Suspension Clause applies to executive detention abroad, is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court\u27s opinion. Drawing on Supreme Court precedent and lower court jurisprudence regarding the extraterritorial application of constitutional rights, as well as comparative and historical practice-including the intent of the Framers-the Article seeks to reintegrate the fundamental norms strands of the Boumediene opinion into its functional test, and thus to normatively ground the opinion. It does so by arguing that the functional test for extraterritorial application of habeas rights should be informed by international law, a consideration that the Bounediene decision omitted from its analysis. The Article concludes that utilizing international law\u27s substantive, fundamental, nonderogable norms to help determine whether constitutional protections apply abroad would both allay the Court\u27s practical concerns and ground the Court\u27s test in the important normative principles that in fact underlie its Boumediene opinion. Applied to the habeas context, this analysis suggests that detainees held by the United States military for a prolonged period of time at a military base or other secure facility without being afforded adequate due process are constitutionally entitled to habeas review to assert claims that they are civilians and not enemy combatants

Prolonged Solitary Confinement and the Constitution

This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in the context of what has been deemed unacceptable by the world community. This practice of long-term solitary confinement constitutes cruel and unusual punishment and violates the due process rights of prisoners, yet the unfortunate trend in the United States has been to downplay and ignore the cruel and inhuman effects of psychological abuse to prisoners where there is no long-term physical injury

The Preventive Paradigm and the Perils of Ad Hoc Balancing

This article addresses the claim that times of crisis require jettisoning legal rules in favor of ad hoc balancing. Part I demonstrates that the coercive preventive measures adopted by the Bush administration in carrying out the War on Terror discarded clear legal rules in favor of ad hoc balancing and relied on suspicions rather than objective evidence. Part II examines the claims of prevention paradigm supporters that ad hoc balancing is necessary in the new post-911 era in order to reach decisions that correctly weigh the values of liberty and peace versus national security. This article argues that discarding the legal rules that prevent or limit the application of coercive preventive measures in favor of an ad hoc balancing test not only undermines law and liberty, but fails to protect our security