DETENTION
Why What You Thought You
Learned in Constitutional Law is
Probably Wrong
Overview
Criminal imprisonment
 Administrative detention under the police
power (quarantines)
 Class based detentions
 The peculiar institution of "legal" aliens
 How these turn into PETTBOM and
GITMO
 Why we do not want to provide legal
process
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Criminal Imprisonment
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The classic model
Criminal due process
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Bail with limited exceptions
Right to appointed counsel
Right to trial by jury
Speedy trials
Proof beyond a reasonable doubt
Protection again unreasonable search and seizure
Protection against self-incrimination
Access to habeas corpus
Roots of the Police Power
For ten years prior, the yellow fever had raged almost
annually in the city, and annual laws were passed to resist it.
The wit of man was exhausted, but in vain. Never did the
pestilence rage more violently than in the summer of 1798.
The State was in despair. The rising hopes of the metropolis
began to fade. The opinion was gaining ground, that the
cause of this annual disease was indigenous, and that all
precautions against its importation were useless. But the
leading spirits of that day were unwilling to give up the city
without a final desperate effort. The havoc in the summer of
1798 is represented as terrific. The whole country was
roused. A cordon sanitaire was thrown around the city.
Governor Mifflin of Pennsylvania proclaimed a nonintercourse between New York and Philadelphia. (Argument
of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41
(1849))
Administrative Detentions:
Quarantine Model
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Protection of the public, not punishment
Limited rights under the US Constitution
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No appointed counsel
No bail
Proof by preponderance of the evidence
No trial by jury
Lasts as long as the danger
Can be done in prison
Access to habeas corpus
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Deference to the agency
Expansion of the Administrative
Detention Model
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Material witnesses
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Bail Reform Act
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Bell v. Wolfish, 441 U.S. 520 (1979)
U. S. v. Salerno, 481 U.S. 739 (1987)
Redefining imprisonment for sex offenders
Allen v. Illinois, 478 US 364 (1986)
 Kansas v. Hendricks, 117 S.Ct. 2072 (1997)
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Key legal issue
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Is it punishment or prevention?
Class Based Detentions
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Korematsu v. United States, 323 U.S. 214
(1944)
Japanese on the WEST coast
 The order was to move them inland, but the
locals objected
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Ex parte Mitsuye Endo, 323 U.S. 283
(1944)
The case that explains it all
 The court ruled that a person could not be
held if it was determined that he was not a
threat
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Combatants:
Ex parte Quirin, 317 U.S. 1 (1942)
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The German Spy Case
Arrested in the U.S.
 One was a US citizen
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Were to be tried by a military tribunal as
unlawful combatants
 United States Supreme Court ruled that
unlawful combatants, even if U.S. citizens,
could be tried by military tribunals
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Not overruled by Reid v. Covert, 351 U.S. 487
(1956)
Immigrants:
Legal and Illegal
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The Constitution gives congress plenary power
over immigration.
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Immigration detention and deportation is an
administrative proceeding
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No constitutional right to enter or stay in the US
A naturalized citizen can be stripped of citizenship for
fraud
Process defined by congress
Few due process rights
What does this mean in real life?
Enemy Alien Act
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Whenever there is a declared war between the
United States and any foreign nation or
government, or any invasion or predatory
incursion is perpetrated, attempted, or
threatened against the territory of the United
States by any foreign nation or government, and
the President makes public proclamation of the
event, all natives, citizens, denizens, or subjects
of the hostile nation or government, being of the
age of fourteen years and upward, who shall be
within the United States and not actually
naturalized, shall be liable to be apprehended,
restrained, secured, and removed as alien
enemies.
PENTTBOM and GITMO
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PENTTBOM
The FBI Investigation into 9/11
 Rounded up about 5,000 young Muslim men
 Deported most of them with any technical visa
problems
 Detained them for long period in poor
conditions with limited or no access to
counsel
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GITMO
Why Not Give Everyone Habeas
Corpus?
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What does habeas corpus mean?
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Then why worry about it?
The importance of isolation
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Do you automatically get out?
Do you get to try your case?
Human interrogation depends on it
What does a lawyer tell a client?
What else can a lawyer do?
If you give them habeas corpus, do you have to
torture them?