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Articles by Jonathan Hafetz
Free Speech, Deportation, and the Suspension of Habeas Corpus
Suspending habeas corpus represents one of the most momentous steps the government can take, an elimination of a centuries-old legal protection against wrongful detention, celebrated by the framers and enshrined in the Constitution. It is generally accepted that only Congress, not the president acting alone, may lawfully suspend the writ. Even President Trump—not known for fidelity to norms and traditions—has yet to suspend habeas.
The Limits of the Passive Virtues in Trump 2.0.
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
Habeas and the Alien Enemies Act: Challenges and Opportunities
In an important early test of its response to President Trump’s unchecked use of federal immigration power, the Supreme Court last week granted the administration’s request to vacate the temporary orders the district court had entered preventing the administration from removing alleged members of the Tren de Aragua (TdA) gang to El Salvador under the Alien Enemies Act of 1798 (AEA). In a four-page, unsigned opinion in Trump v.
At Guantanamo's Migrant Operation Center
(Editor’s note: This article is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions.) President Donald Trump issued a memorandum on Jan.
Revoking the Plea in the 9/11 Case: The Cycle of Lawlessness at Guantanamo Continues
The author, a professor at Seton Hall Law School, argues that Defense Secretary Lloyd Austin's decision to revoke plea agreements for 9/11 defendants at Guantanamo perpetuates a cycle of lawlessness...
The Trump Hush-Money Prosecution and Militant Democracy
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
Trump’s Challenge to Democracy through the Lens of Transitional Justice
The dominant frame for former President Donald Trump’s effort to overturn the result of the 2020 presidential election tends to be inward-looking and imbued with notions of American exceptionalism. President Joe Biden described the 2022 mid-term elections as “a battle for the soul of th[e] nation” and is employing similar messaging for the 2024 presidential election, while analysts continue to warn that democracy in the United States is under assault in unprecedented ways.
Calling for Respect, Freedom, and Security for All Is Not Antisemitic
“Daughters of Jerusalem, do not weep for me, but weep for yourselves and for your children.”(Luke 23:28) Last April, while classes were still in session, I was suddenly called to an urgent meeting with Dean Doug Elmendorf at the Harvard Kennedy School, where I have been teaching leadership, organizing, and action for the last 30 years. When he told me I was to be investigated on charges of antisemitism, I was stunned. When he made it clear this was not a bad joke, astonishment gave way to anger.
How a Leading Definition of Antisemitism Has Been Weaponized Against Israel’s Critics
World / December 27, 2023 How a Leading Definition of Antisemitism Has Been Weaponized Against Israel’s Critics Pro-Israel groups have used the examples attached to the IHRA definition of antisemitism to silence dissent about Israel’s attacks. Ad Policy Protesters demonstrate outside a meeting of the National Executive of Britain’s Labour Party on September 4, 2018, in London, England.
Third Annual Symposium on Pop Culture and International Law: Judgment at Nuremberg – Capturing the Complexities of Mass Atrocity Trials on Film
Third Annual Symposium on Pop Culture and International Law: Judgment at Nuremberg – Capturing the Complexities of Mass Atrocity Trials on Film 01.11.23 | [Jonathan Hafetz is Professor of Law at Seton Hall Law School. He is also the creator and host of the podcast, LawOnFilm.] Portraying criminal trials for mass atrocities on screen is an inherently challenging task. Filmmakers must tackle the competing demands of historical accuracy and dramatic effect.
Homeland Security’s fusion centers show the dangers of mission creep Original
The terrorist attacks of Sept. 11, 2001, prompted an unprecedented escalation in the domestic surveillance apparatus. More than 20 years later, the tools of surveillance developed post-9/11 not only continue to expand but also drift further from their ostensible mandate of preventing future terrorist attacks. These tools, moreover, operate without meaningful transparency or checks, increasing the threat to individual freedoms without any corresponding security gains.
In Guantanamo cases, is the government trying to profit from torture?
WATCH: Ilhan Omar reacts to Kevin McCarthy's plan to pull her from committees Rep. Ilhan Omar (D-MN) on Sunday condemned House Speaker Kevin McCarthy's (R-CA) plans to kick her off the House Foreign Affairs Committee as hypocritical. Omar was asked about McCarthy's repeated promises to yank her committee assignments during an appearance on MSNBC's Yasmin Vossoughian Reports.
In Guantanamo cases, is the government trying to profit from torture?
Twenty-one years ago today, the United States began shipping droves of Muslim men to the U.S. Naval Station Guantanamo Bay, a remote military base on Cuba’s southern coast. The George W. Bush administration evidently chose this location hoping that it would put the men beyond the reach of U.S. courts — in the words of at least one government official, because Guantanamo was “the legal equivalent of outer space.” In some respects, that proved wrong.
The Last, Best Chance for Accountability at Guantanamo? A Negotiated Plea for the 9/11 Defendants
It would have been among the most important criminal trials in American history: the prosecution of accused 9/11 mastermind Khalid Sheikh Mohammed (KSM). But instead, KSM, along with his four alleged co-conspirators, remain in legal limbo at Guantanamo, two decades after U.S. officials took them into custody.
The Biden Administration's Moment of Truth on Torture Evidence
by David Luban, Scott Roehm, Claire O. Finkelstein, Karen J. Greenberg, Lisa Hajjar, Jonathan Hafetz, Elisa Massimino and Gabor Rona December 1, 2021 Abd Al-Rahim Hussein Al-Nashiri is headed to federal court to prevent the U.S. government from using torture-derived evidence in his capital prosecution before the Guantanamo military commissions.
What the U.S. Withdrawal from Afghanistan Could Mean for Guantanamo Detainees and the Due Process Clause
Later this month, the full D.C. Circuit will hear arguments in Al-Hela v. Biden, the most consequential Guantanamo habeas case since the Supreme Court’s 2008 decision in Boumediene v. Bush, which held that the Constitution’s habeas corpus guarantee applies to detainees there. The central question in Al-Hela is whether the Constitution’s Due Process Clause also applies to those detainees.
Biden Team’s Litigation Tactics on Guantanamo Undercut Biden Policy to Close the Prison
by Jonathan Hafetz, Scott Roehm and Hina Shamsi April 21, 2021 Earlier this month, the Biden administration had an opportunity to distance itself from the Trump administration’s categorical rejection of due process rights for detainees held at Guantanamo. That opportunity arose in Ali v. Biden, in which a detainee is petitioning the Supreme Court to reverse a lower court opinion that accepted the Trump administration’s position.
Upcoming Cases Provide Opportunities to Reassess the Application of the Due Process Clause at Guantanamo
In 2008, the Supreme Court concluded in Boumediene v. Bush that detainees at Guantanamo have the right to challenge their detention through habeas corpus under the Constitution’s Suspension Clause. Yet, nearly 12 years after that decision, courts have yet to recognize that they are also protected by the Constitution’s Due Process Clause, despite the close relationship between the two provisions.
Through the Looking Glass, Darkly: The Supreme Court’s Muslim Travel Ban Decision
Four years ago, in one his first acts as president, Donald Trump suspended the entry into the United States of individuals from seven predominantly Muslim countries, while making little effort to hide his animus towards this religious group.
How to Impeach Trump?
Jonathan Hafetz, Professor of Law at Seton Hall University School of Law, discusses the impeachment process of Donald Trump in the wake of the violence at the U.S. Capitol... Because of his attempt to overturn the 2020 election and foment attacks on the Capitol, President Trump must be impeached.
America's Transitional Justice Moment
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
The Case for Prosecuting Donald Trump
Jonathan Hafetz, Professor of Law at Seton Hall University, discusses the case for prosecuting President Donald J. Trump for crimes pre-dating his appointment and the consequences of the such porsecutions.... After President-elect Joe Biden takes office and Donald Trump exits the White House, federal and state prosecutors will have to decide whether to charge the former president based on ongoing criminal investigations.
Testing Novel Power, Trump Administration Detains Palestinian After Sentence Ends
WASHINGTON — Swept up by authorities after the Sept. 11 attacks, Adham Hassoun, a Palestinian computer programmer who lived in Florida, served 15 years in prison for sending support to Islamist militants abroad. His sentence completed, he then waited in immigration detention more than a year and a half while the government fruitlessly hunted for a place to deport him. Finally, a judge ordered him temporarily released in the United States.
William Barr’s Unsolicited Memo to Trump About Obstruction of Justice
Last month, news broke that in June 2018, President Trump’s current nominee for attorney general, William P. Barr, sent an unsolicited 20-page memo to the Justice Department critiquing special counsel Robert Mueller’s current investigation into Russian election interference.
William Barr’s Unsolicited Memo to Trump About Obstruction of Justice
UPDATE: On Feb. 14, 2019, the Senate confirmed William Barr to be the next attorney general of the United States by a vote of 54-45. Last month, news broke that in June 2018, President Trump’s current nominee for attorney general, William P. Barr, sent an unsolicited 20-page memo to the Justice Department critiquing special counsel Robert Mueller’s current investigation into Russian election interference.
William Barr’s Unsolicited Memo to Trump About Obstruction of Justice
UPDATE: On Feb. 14, 2019, the Senate confirmed William Barr to be the next attorney general of the United States by a vote of 54-45. Last month, news broke that in June 2018, President Trump’s current nominee for attorney general, William P. Barr, sent an unsolicited 20-page memo to the Justice Department critiquing special counsel Robert Mueller’s current investigation into Russian election interference.
U.S. Citizen, Detained Without Charge by Trump Administration for a Year, Is Finally Free
An American illegally detained in Iraq by the U.S. military for more than a year has finally won his freedom. On Sunday, after a long court battle, the Trump administration let our client go. Under a settlement agreement, he was released in a third country, where he will once again be a free man. Parts of the agreement are confidential, and he is officially remaining unidentified for his safety and privacy.
Judge Kavanaugh’s record in national-security cases
Jonathan Hafetz is a senior staff attorney in the Center for Democracy at the American Civil Liberties Union and a professor of law at Seton Hall Law School. In his 12 years on the bench, Judge Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, has accumulated an extensive record in cases implicating national security.
Punishing atrocities through fair trial international criminal law nuremberg age global terrorism | Criminal law
Over the past decades, international criminal law has evolved to become the operative norm for addressing the worst atrocities. Tribunals have conducted hundreds of trials addressing mass violence in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and other countries to bring to justice perpetrators of genocide, war crimes, and crimes against humanity.
The Trump Administration Wants to Dump a Detained American Into One of the Most Dangerous Places on Earth
For almost nine months, a U.S. citizen illegally detained by the U.S. military in Iraq without charges has been fighting in court for his freedom. Wednesday night, the Trump administration told the judge that it was going to let him go — but with a deadly catch. The government said that it plans to drop off our client in Syria, either in a town or outside a refugee camp. He would have no identification or assurances of protection.
The Trump Administration Wants to Dump a Detained American Into One of the Most Dangerous Places on Earth
For almost nine months, a U.S. citizen illegally detained by the U.S. military in Iraq without charges has been fighting in court for his freedom. Wednesday night, the Trump administration told the judge that it was going to let him go — but with a deadly catch. The government said that it plans to drop off our client in Syria, either in a town or outside a refugee camp. He would have no identification or assurances of protection.
Punishing atrocities through fair trial international criminal law nuremberg age global terrorism | Criminal law
Over the past decades, international criminal law has evolved to become the operative norm for addressing the worst atrocities. Tribunals have conducted hundreds of trials addressing mass violence in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and other countries to bring to justice perpetrators of genocide, war crimes, and crimes against humanity.
The Trump Administration Is Trying to Forcibly Send a Detained US Citizen to Another Country
For more than seven months, the Trump administration has been unlawfully detaining an American citizen in Iraq. Rather than charge him with a crime or set him free, the government wants to transfer him, involuntarily, to a third country. The ACLU is going to court on Thursday to stop the transfer and fight the government’s dangerous claims that it has the authority to violate an American’s constitutional rights.
The Trump Administration Is Keeping a U.S. Citizen Secretly Locked Up Without Charges
For nearly two months, the U.S. military has been detaining an American citizen at a secret jail in Iraq, denying him access to a lawyer and even refusing to release his name. The Trump administration is calling the citizen an “enemy combatant,” claiming he was fighting for ISIS in Syria, but it has not presented any evidence to back up its allegations.
What Are the Rights of an American Captured Fighting for ISIS?
Media outlets are reporting that the U.S. military is currently detaining an American citizen captured allegedly fighting on behalf of ISIS in Syria. The Trump administration has not released the citizen’s name or location, nor has it indicated whether the suspect will face criminal charges in federal court or be subjected to continued military detention.
GUEST COLUMN: Trump’s travel ban: It’s the principle, not the president
President Donald Trump’s effort to bar travel to the United States by citizens of several Muslim-majority nations continues to face stiff resistance in the courts. Two federal judges have blocked Trump’s new executive order, issued after multiple courts had halted enforcement of his initial order.But a judicial defense of the new order is taking shape as legal challenges move to the next stage, with federal appeals courts in Seattle and Virginia scheduled to hear challenges.
COMMENTARY: Trump's travel ban: It's the principle, not the president
President Donald Trump’s effort to bar travel to the United States by citizens of several Muslim-majority nations continues to face stiff resistance in the courts. Two federal judges have blocked Trump’s new executive order, issued after multiple courts had halted enforcement of his initial order.But a judicial defense of the new order is taking shape as legal challenges move to the next stage, with federal appeals courts in Seattle and Virginia scheduled to hear challenges.
Trump's travel ban: It's the principle, not the president
President Trump’s effort to bar travel to the U.S. by citizens of several Muslim-majority nations continues to face stiff resistance in the courts. Two federal judges have blocked Trump’s new executive order, issued after multiple courts had halted enforcement of his initial order. But a judicial defense of the new order is taking shape as legal challenges move to the next stage, with federal appeals courts in Seattle and Virginia scheduled to hear challenges.
Trump is right - travel ban is about the principle, not the president
President Donald Trump’s effort to bar travel to the United States by citizens of several Muslim-majority nations continues to face stiff resistance in the courts. Two federal judges have blocked Trump’s new executive order, issued after multiple courts had halted enforcement of his initial order. But a judicial defense of the new order is taking shape as legal challenges move to the next stage, with federal appeals courts in Seattle and Virginia scheduled to hear challenges.
Column: Trump's travel ban: It's the principle, not the president
President Donald Trump’s effort to bar travel to the United States by citizens of several Muslim-majority nations continues to face stiff resistance in the courts. Two federal judges have blocked Trump’s new executive order, issued after multiple courts had halted enforcement of his initial order.But a judicial defense of the new order is taking shape as legal challenges move to the next stage, with federal appeals courts in Seattle and Virginia scheduled to hear challenges.
Trump’s travel ban: It’s the principle, not the president
Leading experts reject President Donald Trump’s national security rationale for the ban, as does a recent Department of Homeland Security report finding that country of citizenship is not a reliable indicator of potential terrorist activity. PRESIDENT Donald Trump’s effort to bar travel to the United States by citizens of several Muslim-majority nations continues to face stiff resistance in the courts.
President Trump's Revised Travel Ban: The Underlying Problem of Religious Discrimination Remains
In effort to stave off legal challenges to his initial Executive Order (EO) banning travel by nationals of seven predominantly Muslim-majority countries, President Donald J. Trump issued a revised EO that addresses several shortcomings. Yet, the new EO, issued on March 6, 2017, remains fundamentally flawed because it perpetuates the central constitutional infirmity: discrimination on the basis of religion in violation of the Establishment Clause.
Why Courts Appear Willing to Reject Trump’s Travel Ban Order
VIDEO On Friday, James Robart, a U.S. federal district judge in Seattle, issued a nationwide temporary restraining order (TRO) against President Donald Trump’s Executive Order that imposed a temporary ban on travel to the United States by immigrants and nonimmigrants from seven predominantly Muslim countries and suspended the entry of all refugees. Judge Robart joined several other judges who have stayed parts of the Executive Order.
Feinstein-Burr 2.0: The Crypto Backdoor Bill Lives On
When it was first released back in April, a “discussion draft” of the Compliance With Court Orders Act sponsored by Sens. Dianne Feinstein (D-CA) and Richard Burr (R-NC) met with near universal derision from privacy advocates and security experts.
Guest Post: US Dollars and Kenya’s ‘Disappeared’
Just over a year ago, in May , 2015, Kenyan Border Patrol police arrested Hussein Ali Abdullahi from his shop in Wajir, northeastern Kenya, and took him to Wajir military camp. His family hasn’t been able to trace him since that day. Omar Yusuf Mohamed’s family is looking for Omar too. Security officers arrested him in Mandera in April, 2015.
Secret Law, Targeting, and the Problem of Standards: A Response to Dakota Rudesill
In his recent posts and an article, Dakota Rudesill tackles the phenomenon of secret law. Dakota persuasively describes a growing body secret law, which he defines as “legal authorities that require compliance that are classified or otherwise unpublished,” and explains this growth across all three branches of the US government. Dakota then offers a series of recommendations that accepts some degree of secret law, but seeks to govern it more fully, deliberately, and consistently.
Torture and Transparency in the Military Commissions
America’s war court is back in session at Guantánamo, with yet more pretrial proceedings in the case of the five 9/11 defendants (alleged mastermind Khalid Sheikh Mohammed, or KSM, and his four co-conspirators). Whatever may come of Obama’s last-ditch effort to close Guantánamo, military commissions will remain for the foreseeable future. Among other issues in the case, the judge, Army Col. James L.
Sami al-Hajj: Remembering Guantanamo
Doha, Qatar – As a young boy growing up in Sennar, an agricultural Sudanese town on the Blue Nile, I developed a keen interest in journalism. Enthused by the rich culture and history of my surroundings – Sennar had once been the capital of an historic kingdom – I began writing for school and then college publications. When it was time to go to university, I left home and headed for India, where I spent five years studying political science and sociology.
The Obama Administration’s Misguided Opposition to Tariq Ba Odah’s Request for Judicial Relief
On October 15, a federal district court in Washington, DC, will hear argument in Ba Odah v. Obama, a habeas challenge by a Guantánamo detainee whose prolonged hunger strike has left him in a precarious medical condition. The case raises two overarching questions: First, whether principles of international humanitarian law (IHL) governing sick prisoners require petitioner Tariq Ba Odah’s immediate repatriation; and second, if they do, whether a federal judge can order this relief.
Delay and Detention at Obama’s Guantánamo: The Missing PRBs
National Security: The Impact of Technology on the Separation of Powers (Day 2) “This conference will explore a host of issues involving the intersection of national security, the separation of powers, and technology.
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