Jonathan Hafetz

Jonathan Hafetz directs litigation for the Liberty & National Security Project of the Brennan Center for Justice at NYU School of Law, and is the author of a forthcoming book on post-September 11 detention policy, to be published by NYU Press.

Recent Articles

Time for Meaningful Justice at Guantanamo

For six years the Bush administration has denied Gitmo detainees the right to habeas corpus. It is time for the Court to resolve once and for all that they deserve their day in court.

Seth Waxman, attorney for prisoners detained at Guantanamo Bay, Cuba, during oral arguments at the Supreme Court on Wednesday. (AP Photo/Lawrence Jackson)
The Guantanamo detainee cases returned to the Supreme Court Wednesday for yet another round in the longstanding battle over legal rights in the administration's "war on terror." Remarkably, the 300-plus men at Guantanamo still remain in legal limbo after six years of imprisonment. The prevailing mood among members of the Court was that enough is enough. The third in a trio of Guantanamo cases, Boumediene v. Bush could prove the most far-reaching. It asks the simple but important question of whether the Constitution's guarantee of habeas corpus, the right to challenge your imprisonment, protects the Guantanamo detainees. In other words, the Court is being asked to draw a line in the sand: to make clear that there are certain fundamental guarantees to which these individuals are entitled, no matter what the president or Congress says. And that is exactly the message those other branches need to hear. Ironically for such a momentous case, much of the territory the Court explored on...

Torture and America's Crisis of Faith

The Senate's retreat from its initial demand that now-Attorney General Michael Mukasey denounce waterboarding is detrimental to the country's moral fabric.

The recent battle over Michael Mukasey’s nomination for attorney general tested America’s faith in its Constitution and values. America fared poorly. On Nov. 8, the Senate voted 53-40 to confirm Mukasey’s nomination. The pivotal moment, however, came the week before when two key Democrats on the Senate Judiciary Committee, California’s Dianne Feinstein and New York’s Charles Schumer, announced their support for Mukasey. Mukasey earned a well-deserved reputation for intelligence and integrity during his 19 years of service on the federal bench. But before approving him for the nation’s top law enforcement position, senators specifically asked Mukasey to declare torture illegal. Mukasey was unable to do so. The controversy centered on a technique known as waterboarding, in which the victim is strapped to a board while water is poured down his nose and throat. Commentators often describe waterboarding as simulated drowning. Former Navy intelligence expert Malcolm Wrightson Nance says "...

How the Military Commissions Obscure Gitmo's Real Purpose

Focusing on the troubled commissions only distracts observers from confronting the truth about Guantanamo Bay: that the vast majority of its detainees will never face a trial of any kind.

A Guantanamo detainee holds onto a fence as a U.S. military guard walks past. (Photo by the Associated Press)
Last week's surprise rulings by two military judges at Guantanamo Bay threw into turmoil the president's effort to try suspected terrorists by military commissions. The rulings halted current proceedings involving two detainees and sparked new debates about the wisdom and legality of the commissions themselves. But larger questions remain about the role that such military commissions fill at Guantanamo, where the overriding purpose is to detain individuals without any trial at all. That purpose is obscured by the continued and misplaced focus on military trials -- a product of our cultural fascination with courtroom drama. It's worth recalling the genesis of these trials. The president created military commissions two months after September 11 as part of his "new paradigm." The administration claimed that the commissions provided the necessary speed and flexibility to bring suspected terrorists to justice. These were attributes, the administration argued, that criminal trials in...

Power Strip

Last week, Congress passed legislation giving the president a blank check to wage his “war on terror.” The new law, known as the Military Commissions Act of 2006 (MCA), is rife with problems. It gives the president drag-net detention power, sets up a second-class system of military justice for non-citizens, and weakens the Geneva Convention's protections against torture and other abuse. But the most chilling aspect of the new law is its deliberate attempt to eliminate the federal courts' role as a check on executive illegality. Congress, in short, has not simply rewritten the law; it has undermined the judiciary's power to interpret it. The MCA takes aim at habeas corpus, the Constitution's most fundamental safeguard of individual liberty, eliminating it for any non-citizen detained as an “enemy combatant.” What's more, the act defines an enemy combatant broadly, permitting the detention not only of those engaged in hostilities against the United States or its allies but also those...

The Busy Season

Congress returns from recess this month to confront fundamental questions presented by the president's five-year long global "war on terrorism." On the table is nothing less than the future scope of presidential power, with battles looming over military trials, detainee treatment, and domestic surveillance. In the past several months, courts have dealt the administration a series of setbacks on these issues. Undeterred, the president intends to reverse those defeats by asking lawmakers for even greater authority. The ball is now in their court. Military trials top the legislative agenda. The impetus is the Supreme Court's recent decision in Hamdan v. Rumsfeld striking down the president's military commissions at Guantanamo Bay. Hamdan did not rule out military trials for suspected terrorists but found that the current commissions exceeded the limits imposed by Congress and by the 1949 Geneva Conventions. Rather than conforming trials to U.S. court-martial procedures, as the Court said...