What Is a Legal Black Hole

This essay attempts to describe what stands out in the way the protection of individual rights in the areas of national security and foreign affairs has taken place in recent decades. Historically, the right to protection has been severely restricted by the U.S. Constitution and the courts by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules created areas where the courts and the constitution offered protection, and those where they did not. The institutional design and functional rules of the national security state followed these formal and categorical rules beyond the limits of protection. There have been many “legal black holes” in the past, areas where there was no legal protection for some people. Foreign policy and national security have always been areas defined by their legal black holes. Over the past decade, as difficult legal issues have been raised about individual rights and judicial review – for example, the rights of military prisoners without citizenship at Guantanamo or US citizens affected by drone strikes in Yemen or elsewhere – it has been quite common to hear lawyers assert that understandings, Precedents and centuries-old practices support their arguments. For example, in Rasul 1 1 Rasul v. Bush, 542 U.S. 466, 470–73 (2004) (regarding the habeas corpus review of U.S.

military detentions of alleged Al-Qaeda/Taliban supporters at a military base in Guantanamo Bay, Cuba). Close then Boumediene 2 2 Boumediene v. Bush, 553 U.S. 723, 732–33 (2008) (ibid.). Lawyers and law professors who supported the inmates confidently asserted that the common law and constitutional principles and practices of the eighteenth century and before clearly dictated that prisoners were entitled to habeas review, while lawyers and law professors, on the other hand, asserted equally confidently the opposite. 3 3 See Brief for Professors of Constitutional Law and Federal Jurisdiction as Amici Curiae Supporting Petitioners at 5–25, Boumediene, 553 U.S. 723 (nos. 06-1195), 2007 WL 2441580 (citing historical jurisprudence and practice show that persons such as prisoners have long been protected by habeas corpus and the suspension clause), with a letter to the Foundation for the Defense of Democracies et al. as amici curiae supporting the defendants at 5-12, Boumediene, 553 U.S.

723 (No. 06-1195), 2007 WL 2972242 (arguing that there is no historical precedent for the protection of habeas corpus of persons such as prisoners). Close supporters of prisoners` rights and others affected by post-9/11 security measures claimed that the Bush administration`s claims that the Constitution does not traditionally protect certain individuals or places were attempts to create “legal black holes”.[4] Kate Zernike, McCain and Obama divided over the judges` decision at Guantanamo, N.Y. Times (June 13, 2008), www.nytimes.com/2008/06/13/us/politics/ 13 .html candidates (submitted to Columbia Law Review) (quotes Senator Barack Obama). The term seems to have been coined by Johan Steyn. See Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 Int`l & Comp. L.Q. 1, 1 (2004) (“The most powerful democracy holds hundreds of suspected Taliban foot soldiers in a legal black hole at the U.S. naval base at Guantanamo Bay, awaiting trial on capital charges in military courts.”).

Close something that has been called shocking and even anti-American. 5 5 See Countdown to Keith Olbermann (MSNBC TV show, June 22, 2007) (testimony of Professor Neal Katyal, Salim Hamdan`s lawyer), transcript available at www.nbcnews.com/id/19415786/ns/msnbc-countdown_with_keith_olbermann /t/ countdown-keith-olbermann-june/#. VNVdS1PF_lQ (filed with Columbia Law Review) (“The administration`s argument is that Guantanamo is a legal black hole where they can do whatever they want. [T]he president is. fundamentally anti-American to say: These people have no rights. »). Close On the basis of the Council`s resolutions, despite the lack of definition, many valuable and principled laws and cooperation have emerged. However, the absence of a definition of terrorism continues to seriously hamper the effectiveness of the fight against terrorism, its compatibility with human rights standards and international humanitarian law, and the legitimacy and legality of the Council`s exercise of powers in matters of international security under the Charter of the United Nations. The war also revealed an intra-state-international gap in protection. Both U.S. citizens and aliens on the home front remained protected by constitutional and other national rights during the war.34 34 See Ex parte Milligan, 71 U.S. (4 walls.) 2, 118–31 (1866) (conducting an unconstitutional military trial against non-combatants in a Union state not subject to martial law); Kent, Damages, op.

cit. Cit. note 17, pp. 1163-65 (Summary of competent judicial authorities). Near, but all persons residing in an enemy nation, enlisted in the armed forces of an enemy (enemy combatants) or staying at the site of actual fighting, were outside the protection of the Constitution. 35 35 See Milligan, 71 U.S. PP. 118, 123, 131 (suggesting that persons in these contexts are not protected by constitutional provisions promulgated by the Court); Kent, Civil War, op. cit. Cit. note 7, passim (documents near-universal beliefs and practitioners of these categories that are not protected by the Constitution and laws); Kent, Enemy Fighters, op. cit.

Cit. Note 9, pp. 176-211 (ibid.). As previously stated, the CIA Organic Law prohibits the exercise of “police, subpoena, law enforcement, or homeland security functions.” 91 91 50 U.S.C. § 3036(d)(1). The nearby law enforcement agencies, the DOJ and FBI, have primary responsibility for gathering foreign intelligence from human sources in the United States, while the CIA has responsibility for collecting human sources abroad. 92 92 EO 12333, supra note 87, § 1.3(b)(20)(A)–(B); see also 50 U.S.C. § 3036(d)(3) (“The Director of the Central Intelligence Agency shall. Provide general direction and coordination of the collection of domestic information outside the United States by human sources through elements of the intelligence community authorized to conduct such collection. No intelligence agency other than the FBI is allowed to participate in “foreign intelligence gathering” in the United States. for the purpose of obtaining information about the domestic activities of U.S.

persons. EO 12333, supra note 87, § 2.3 (b). Close This choice was made because law enforcement agencies are structured and trained to follow legal orders to protect civil liberties, while foreign intelligence services are usually required to break the laws of the countries in which they operate. To give a basic example, law enforcement agencies apprehend and detain individuals in a network of constitutional and legal orders that impose ex ante requirements before detention can begin, and require prompt approval from an independent bailiff to maintain detention. 93 93 See, for example, Cnty of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (the Constitution requires that persons arrested without a warrant approved by the court be immediately brought before the judge, which usually means within forty-eight hours). Close In recent years, old understandings and practices have begun to crumble. The differences between country and foreigner, enemy and friend, peace and war, citizens and non-citizens are collapsing, both in the real world and in the law that determines the domain of rights and the right of access to justice. Formal barriers to legal protection and judicial review based on categorical distinctions of citizenship, geography or war are disappearing, and the dissolution of these categorical boundaries is also reflected in changes in the design and functioning of the national security state.