LSU ALum 01 by L587rDN

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									      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
           Criminal Imprisonment
   The classic model
   Criminal due process
       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 non-
intercourse 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
   Protection of the public, not punishment
   Limited rights under the US Constitution
       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
       Deference to the agency
    Expansion of the Administrative
          Detention Model
   Material witnesses
       Bell v. Wolfish, 441 U.S. 520 (1979)
   Bail Reform Act
       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)
   Key legal issue
       Is it punishment or prevention?
        Class Based Detentions
   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
   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
           Combatants:
 Ex parte Quirin, 317 U.S. 1 (1942)
   The German Spy Case
     Arrested in the U.S.
     One was a US citizen
 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
       Not overruled by Reid v. Covert, 351 U.S. 487
        (1956)
                     Immigrants:
                   Legal and Illegal
   The Constitution gives congress plenary power
    over immigration.
       No constitutional right to enter or stay in the US
       A naturalized citizen can be stripped of citizenship for
        fraud
   Immigration detention and deportation is an
    administrative proceeding
       Process defined by congress
       Few due process rights
   What does this mean in real life?
              Enemy Alien Act
   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
   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
   GITMO
    Why Not Give Everyone Habeas
              Corpus?
   What does habeas corpus mean?
       Do you automatically get out?
       Do you get to try your case?
   Then why worry about it?
   The importance of isolation
       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?

								
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