40. Rasul v. Bush, 542 U.S. 466 (2004), by a 6–3 majority.
41. 28 U.S.C. § 2241.
42. Hamdan v. Rumsfeld, 05-184 (2006). See also UCMJ, Art. 21, 36. The majority found that the Geneva conventions were judicially enforceable because of their Common Article 3, which applied to the Guantánamo prisoners as nonmembers of any duly constituted military force. The article applies to a conflict not of an international character occurring in the territory of one of the conventions’ signatories, meaning that it protects individuals in such territory, whether or not they are affiliated with a signatory or a nonsignatory. The Geneva conventions provide for a regularly constituted court, which can include courts-martial or military commissions, if deviations from court-martial procedures are required for practical reasons. Hamdan’s lawyer, Neal Katyal, took the opposite side in a similar 2010 case, arguing on behalf of the government, as principal deputy solicitor general, that habeas corpus should not be extended to the U.S.-run prison at Bagram in Afghanistan, to which suspected terrorists seized elsewhere had been taken. The D.C. circuit ruled that the Bagram prisoners were not entitled to the habeas right. Maqaleh v. Gates, 09-5265 (D.C. Cir. 2010).
43. Military Commissions Act of 2006, § 3930.
44. Boumediene v. Bush, 553 U.S. 723 (2008).
45. “Unprivileged” meant people not listed in any of the eight categories covered by the Geneva conventions. Military Commissions Act of 2009, 10 U.S. § 47A.
46. Each conviction would get an automatic review by a U.S. court of military commissions review, comprising panels of military lawyers, and could then be appealed to the federal Court of Appeals for the D.C. Circuit, followed by the Supreme Court.
47. In 2009, Attorney General Eric Holder referred five Guantánamo detainees, one of whom allegedly orchestrated the attack on the destroyer USS Cole in Yemen, for trial in the new military commissions. He sent five accused organizers of the 9/11 attacks for trial in federal criminal court in Manhattan but decided to change venues after an uproar of fear from the political right about security in New York City. Obama didn’t fight Congress’ ban on funds to transfer them from Guamtanamo, leaving commissions as the only option.
48. “Beyond Guantanamo: A Bipartisan Declaration,” The Constitution Project and Human Rights First, Nov. 4, 2009. List of signatories at http://www.constitutionproject.org/manage/file/348.pdf.
49. The five were Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin Attash, Ramzi Bin al-Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed al-Hawsawi. Attorney General Eric Holder, statement, Nov. 13, 2009.
50. For an insightful account of the Timimi case, see Milton Viorst, “The Education of Ali Al-Timimi,” The Atlantic, June 2006.
51. The would-be bombers were Michael C. Finton, an American, and Hosam Maher Husein Smadi, a Jordanian. Mike Robinson, “Men Accused of Unrelated Bomb Plots in Ill., Texas,” AP, Sept. 25, 2009.
52. United States v. Batiste et al., 06-20373 (S.D. Fla. 2006), Indictment; “Seven Florida Men Charged with Conspiring to Support al Qaeda, Attack Targets in the United States,” press release, Dept. of Justice, June 23, 2006.
53. Scott Shane and Andrea Zarate, “FBI Killed Plot in Talking Stage,” New York Times, June 24, 2006.
54. The attorney was Ana M. Jhones. “Five Miami Men Convicted of Sears Tower Attack Plot,” AP, May 12, 2009.
55. Shane and Zarate, New York Times, June 24, 2006.
56. DOJ press release, June 23, 2006.
57. “Florida: Sentencing in Tower Plot,” New York Times, Nov. 21, 2009.
58. Michael Powell and William K. Rashbaum, “Papers Portray Plot as More Talk Than Action,” New York Times, June 4, 2007.
59. Contact with the group had been facilitated by Abdul Kadir, a former member of Guyana’s parliament, who was extradited along with two others to face trial in the United States. He and Defreitas were convicted; two pleaded guilty.
60. United States v. Defreitas et al. (E.D. N.Y.), complaint, June 1, 2007.
61. Defense lawyers have argued that without an adversary proceeding to contest the designation, such organizations are deprived of due process under the Sixth Amendment, and those convicted of providing support are similarly violated. See United States v. Ford, CR-02-399 HA (D. Or. 2002), Memorandum in Support of Defendants’ Motion to Dismiss the Indictment.
62. United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006).
63. United States v. Lakhani, 03-cr-00880, Criminal Complaint (D. N.J. Aug. 11, 2003) (Dkt. No. 1).
64. 18 U.S.C. 2339A(b).
65. Holder v. Humanitarian Law Project, 08-1498 (2010).
66. Although the United States did not enter combat against the Taliban until 2001, President Bill Clinton issued Executive Order 13129 on July 4, 1999, declaring a national emergency that prohibited U.S. persons from making or receiving any contribution of funds, goods, or services to benefit the Taliban.
67. Kenneth Ballen, Terrorists in Love: Hope and Fear from Inside the World of Islamist Extremism (New York: Free Press, 2011).
68. Matthew Purdy and Lowell Bergman, “Where the Trail Led,” New York Times, Oct. 12, 2003.
69. Mark Mazzetti and David Johnston, “Bush Weighed Using Military in Arrests,” New York Times, July 24, 2009.
70. Matthew Purdy, “Our Towns: Puzzling Over Motives of the Men in the Lackawanna Qaeda Case,” New York Times, March 30, 2003.
EPILOGUE: THE HIGH COURT OF HISTORY
1. USA Today, Nov. 14, 2005, p. 20A.
2. Minneapolis Star Tribune, Nov. 4, 2005.
3. The Oregonian, Nov. 3, 2005, p. B06.
4. Diane Rehm Show, WAMU, Apr. 6, 2006.
5. Florida v. Kerwick, 512 So.2d 347, 348–49 (Fla. App. 1987), quoted in Thurgood Marshall’s dissent in Florida v. Bostick, 501 U.S. 429 (1991). Police boarded buses, checked IDs and tickets, and asked to search bags.
6. Lev Kopelev, To Be Preserved Forever (New York: Lippincott, 1977), pp. 10, 87.
7. James Yee, For God and Country (New York: Public Affairs, 2005), p. 145. The formal charge was “failing to obey a lawful general order” by taking classified documents home and “wrongfully transporting classified material without the proper security containers or covers.” But the documents allegedly in Yee’s possession were never determined to have been classified. Neil A. Lewis, “Charges Dropped Against Chaplain,” New York Times, March 20, 2004.
8. “Captain Yee’s performance during this rating period has been truly exemplary in every measure,” read the evaluation. The highest box was checked: “Outstanding Performance. Must Promote.” Ray Rivera, “Suspicion in the Ranks,” Seattle Times, Jan. 9–16, 2005, attached documents.
9. Neil A. Lewis, “Case Against Ex-Chaplain Opens Focusing on Affair,” New York Times, Dec. 9, 2003.
10. General Miller’s spokesman conveyed my request for an interview or e-mail exchange, but Miller was unwilling.
11. Interview with Yee, Beliefnet, Nov. 22, 2005, http://www.alternet.org/story/28586/.
12. Most notable was the FDA’s refusal to approve over-the-counter sales of the morning-after contraceptive pill, despite scientists’ assessment that access was safe for women seventeen and older. The decision, ultimately reversed, was a sop to the antiabortion lobby. Gardiner Harris, “Morning-After Pill: Politics and the F.D.A.,” New York Times, Aug. 28, 2005.
13. “An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General,” Office of Inspector General, Dept. of Justice, July 2008, Chap. 3. http://www.justice.gov/oig/special/s0807/.
14. John Paul Stevens, remarks, Fordham U. Law School, 2005, quoted by Linda Greenhouse, “One Man, Two Courts,” New York Times, Apr. 10, 2010.
A NOTE ABOUT THE AUTHOR
David K. Shipler worked for The New York Times from 1966 to 1988, reporting from New York, Saigon, Moscow, and Jerusalem before serving as chief diplomatic correspondent in Washington. He shared a George Polk Award for his coverage of the 1982
war in Lebanon and was executive producer, writer, and narrator of two PBS documentaries on the Israeli-Palestinian conflict, one of which won an Alfred I. duPont—Columbia University Award for excellence in broadcast journalism. He is the author of four other books: Russia: Broken Idols, Solemn Dreams; Arab and Jew: Wounded Spirits in a Promised Land (which won a Pulitzer Prize); A Country of Strangers: Blacks and Whites in America; and The Working Poor: Invisible in America. He has been a guest scholar at the Brookings Institution, a senior associate at the Carnegie Endowment for International Peace, a trustee of Dartmouth College, chair of the Pulitzer jury on general nonfiction, a writer-in-residence at the University of Southern California, and a Woodrow Wilson Visiting Fellow. He has taught at Princeton University, at American University in Washington, D.C., and at Dartmouth College.
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