The War on Terrorism and the Rule of Law » (1st Edition)

Barnard College

Pious' book provides a detailed discussion of due process issues invoked by the George W. Bush administration's war on terror.

This book questions the premise that the government's obligation to protect Americans from terrorist acts leads to an inevitable tradeoff between constitutional and legal guarantees of due process. Instead, Pious argues that bringing terrorists to justice through the due process of law provides more rather than less security.

The introductory chapter begins by laying out worst-case scenarios for terrorist attacks on the United States. Case studies of recent court cases document that when law enforcement takes shortcuts it may not only result in the imprisonment of innocent people, but also distorts or falsifies the intelligence needed to deploy law enforcement resources in the most efficient manner. Subsequent chapters apply this perspective to such topics as government surveillance (including warrantless surveillance), data-mining, immigration "hold and clear" hearings, the application of material support and material witness statutes, rules of evidence determining access to witnesses, the indefinite detention of American citizens and non-citizens, the use of military hearings, and the authorized and unauthorized mistreatment of detainees to obtain intelligence.

Pious provides accessible, up-to-date materials such as testimony and speeches by Bush administration officials presenting their arguments for an "intelligence-driven" approach rather than a due process approach to combat terrorism, congressional testimony refuting these claims, proposed legislation to require adherence to due process of law, recent statute law delegating extensive power to government officials, and federal cases attempting to strike a balance between governmental prerogative claims and the rights of defendants. The cases have been extensively edited to make them accessible to undergraduate students and other non-lawyers.

The author provides extensive commentaries and notes, some of which are based on his own research, and others that present alternative viewpoints. These are designed to stimulate students, organize class discussion, and point out further avenues of research and inquiry.

Suggested readings at the end of the book provide students with a preliminary bibliography for short essays or longer research papers.

Acknowledgments     vi
Preface     viii
Notes on Editing     x
How to Read and Take Notes on Cases     xii
Homeland Security: Must We Trade Civil Liberties for National Security?     1
Strategy for Eliminating the Threat From the Jihadist Networks of Al-Qida: Status and Prospects     5
Public Law 107-40 107th Congress (Excerpts)     9
FBI Memorandum on the Koubriti Case     18
Leahy's Opening Comments, June 8, 2004     19
President Discusses War on Terror at FBI Academy     22
Questions and Comments     26
Endnotes     28
Surveillance Techniques: May the President Override Patriot Act and Foreign Intelligence Surveillance Act Provisions?     31
In Re All Matters Submitted to the Foreign Intelligence Surveillance Court     36
In Re Sealed Case N. 02-001 (United States Foreign Intelligence Surveillance Court of Review)     42
Letter From Senator Rockefeller to the White House     52
President Bush's News Conference, December 19, 2005     53
Questions and Comments     55
Endnotes     61
Data Mining: Does the Patriot Act Infringe on Privacy Rights?     62
Doe v. Ashcroft     64
Questions and Comments     72
Endnotes     77
Material Support: Does the Patriot Act Impede Freedom of Association?     78
Humanitarian Law Project v. Ashcroft     81
Questions and Comments     87
Endnotes     90
Material Witnesses: Can the Government Hold Them in Indefinite Detention?     91
United States v. Awadallah     95
In Re Grand Jury Material Witness Detention     102
Questions and Comments     104
Endnotes     107
Hold and Clear: May the Government Hold Aliens in Indefinite Detention?     108
North Jersey Media Group, Inc. v. Ashcroft     112
Questions and Comments     119
Endnotes     123
Indefinite Detention of American Citizens: Is It Constitutional?     125
Part One     125
President Bush's Military Order     128
Padilla v. Hanft     130
Padilla v. Hanft     138
Padilla v. Hanft     142
Questions and Comments (Part One)     144
Part Two     148
Declaration of Michael H. Mobbs, Special Advisor to the Under Secretary of Defense for Policy     149
Hamdi v. Rumsfeld     153
Questions and Comments (Part Two)      160
Endnotes     164
Indefinite Detention of Enemy Combatants: Is It Constitutional?     165
President Bush's Military Orders: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism     167
Rasul v. Bush     171
Questions and Comments     174
Endnotes     180
Interrogation: Are There Limits?     181
Gonzales Memo to the President     186
Memorandum From President Bush on Geneva Protections     191
Department of Justice Memorandum on Torture (Excerpts)     194
Memorandum for General Counsel of the Department of the Air Force     196
Pentagon Guidelines for Interrogations     198
Testimony of John D. Hutson (Excerpts)     203
Press Briefings by Scott McClellan, The White House     206
Congressional Record, Oct. 5, 2005: Remarks of Senator McCain     209
S.1042 National Defense Authorization Act for Fiscal Year 2006     211
National Security Adviser Hadley Holds Briefing on the McCain Amendment, as Released by the White House, December 15, 2005     212
Questions and Comments     214
Endnotes     221
Military Tribunals: Is There a Role for Judicial Oversight?     223
Military Order: Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism (Excerpts)     231
Hamdan v. Rumsfeld (344 F. Supp. 2d 152 [2004])     233
Hamdan v. Rumsfeld (415 F.3d 33 [2005])     239
H.R. 1290 Military Tribunals Act of 2003 (Excepts)     246
Questions and Comments     249
Endnotes     257
Sources for Further Reading     260
Books     260
Government Reports     261
Law Review Articles     261
Index of Cases in United States Courts     264
Index of United States Statutes and Bills Introduced     265
Index of Presidential Executive Orders and Military Orders     265
Name and Subject Index     266