Deborah Pearlstein

Deborah Pearlstein is a visiting research scholar at the Woodrow Wilson School of Public and International Affairs at Princeton University. From 2003-2007, she was director of the U.S. Law and Security Program at Human Rights First.

Recent Articles

Advantage, Rule of Law

The Supreme Court's decision yesterday in Hamdan v. Rumsfeld , holding that the Guantanamo Bay military commission trials were unlawful by design, is by any standard a blockbuster. In a solid 5-3 majority opinion written by Justice John Paul Stevens, the Court ruled that the commissions violate the Uniform Code of Military Justice and the Geneva Conventions. To the prevailing post-9/11 mantra of Inter arma silent leges ("laws fall silent in times of war"), the Court, speaking in the voice of its sole remaining military veteran, issued a clear response: Not so fast. The decision's most immediate impact is to effectively end the nearly five-year-old commission process launched by presidential order in November 2001. A target of scathing criticism by political leaders and military lawyers from the beginning, the commissions had become such a subject of international disdain that even the President had begun distancing himself from them in public statements during his most recent travel...

National Insecurity

Next week, the Senate Judiciary Committee will hold hearings on the legality of a secret domestic surveillance program authorized by President Bush in 2002. Senators are set to examine the Attorney General on the administration's sweeping theory of its own power, by which the president can ignore acts of Congress when they don't comport with his sense of the country's national security needs. This is the same theory advanced in the 2002 “torture memo” drafted by U.S. Department of Justice lawyers as a way to avoid criminal laws banning torture. It is also the same theory behind the recent “statement” the president issued as he signed into law the McCain ban on cruel and degrading treatment -- while at the same time reserving power to conduct intelligence operations in the “war on terror” as he sees fit. A bipartisan array of scholars and politicians -- including several former Bush administration lawyers who left the Justice Department during the president's first term -- have...

Out of the Frying Pan

Over the vigorous opposition of human-rights groups and military leaders, senators passed an amendment to the defense authorization bill last week that purports to limit the rights of detainees held by the United States at its naval base at Guantanamo Bay, Cuba, to challenge in U.S. federal courts the legality of their prolonged detention on the base. According to the amendment's author, Republican Senator Lindsey Graham, the provision -- later amended in a hastily-reached compromise with Democratic Senator Carl Levin -- is intended to limit the amount of litigation filed by U.S.-held detainees that Graham maintains has clogged up the federal courts. The great irony of this foray into U.S. detention and interrogation policy is that Graham's amendment, passed in its compromise version by the Senate last week, is the best guarantee detainees' lawyers have had for some time that the question of their clients' rights will stick around in federal courts for quite some time. Senator Graham...

The Senate Steps Up

Last week's vote in the Senate in favor of a measure banning the use of cruel, inhuman, or degrading treatment by any agency of the United States government was the most dramatic step Congress has taken to rein in executive power since the terrorist attacks of September 11, 2001. The amendment, put forward by Senator John McCain, was supported by more than two dozen retired field and flag officers of the U.S. military -- including former chairmen of the Joint Chiefs of Staff Colin Powell and John Shalikashvili -- and embraced overwhelmingly (an extraordinary 90-9 margin) by bipartisan leadership in the Senate. But that was last week. Today, the McCain amendment sits imperiled in conference committee, as a tiny number of conferees work to water down the legislation's bite – to limit it to U.S. armed forces and not U.S. intelligence agencies, or to limit it to acts on U.S. soil rather than acts done in the United States' name anywhere in the world. The White House, signaling what would...

A Branch More Dangerous

“[W]hile unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.” -- Furman v. Georgia , 408 U.S. 238, 467 (1972) (Rehnquist, J., dissenting) (citation omitted) The death of Chief Justice William Rehnquist last week brings to an end an extraordinary era of change at the Supreme Court. Rehnquist leaves a Supreme Court as willing to assert its own power as any since the near-Warren-era Court he joined in 1972. That is no small statement. In 1972, when Rehnquist took the bench as an associate justice, the Supreme Court decided both Roe v. Wade (holding state laws criminalizing abortion unconstitutional) and Furman v. Georgia (imposing a moratorium on the death penalty in the United States). Rehnquist was in the minority in each of those landmark cases, cautioning in both against a failure of judicial restraint. And indeed, as one might...

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