Copyright (c) 2009 All rights reserved. http://works.bepress.com/peter_honigsberg Recent documents in Peter J Honigsberg en-us Sun, 01 Nov 2009 16:39:11 PST 3600 http://works.bepress.com/peter_honigsberg/6 http://works.bepress.com/peter_honigsberg/6 Wed, 29 Apr 2009 15:41:34 PDT In May 2007 I visited Guantanamo Bay, Cuba. What I saw and experienced then are fading away and will soon disappear, now that two-thirds of the nearly 800 detainees have been released and President Obama will close the detention centers within the year. Consequently, this essay provides a historical account of one person's media visit to Guantanamo, when it was a fully-operational prison violating human rights, due process and international law.The essay describes not only the visit but also the application process -- a bizarre experience. The military's application concluded with two quotes from the New Testament and included an attachment of another person's application, complete with his social security and passport numbers.The flight to Guantanamo from Fort Lauderdale Florida was on a ten-seater propeller plane, without bathrooms. It took over three hours, having to circumvent Cuban air space. Once on the island, we were introduced to the senior military officials on the base and escorted to the detention centers, where we could observe detainees but not speak to them. Every evening, an Operations Security contractor reviewed our digital photos, deleting what were described as security lapses, such as images of the coastline, water towers, guard towers, and faces of the detainees and the guards.On the second day of the three-day trip, I was confronted by an officer who asked whether I was a "habeas lawyer," a lawyer who represented the detainees. Although I was not a habeas lawyer, but rather an author of a forthcoming book on Guantanamo and the war on terror, I was informed that the military had erred in permitting me to visit. The story behind this confrontation, why the military believed they had mistakenly granted me permission to visit the island, and my fears and apprehensions in response to their confrontation appear in this essay. Peter J. Honigsberg Terrorism & Law http://works.bepress.com/peter_honigsberg/5 http://works.bepress.com/peter_honigsberg/5 Wed, 29 Apr 2009 15:34:45 PDT In 1944, in Korematsu v. United States, the Supreme Court made a major error in judgment. It ruled that the executive may forcibly remove over 110,000 Japanese Americans from their homes and relocate them in American detention camps. In two recent Supreme Court cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the court made similar errors in judgment by accepting the administration's term "enemy combatant." The Supreme Court's errors were compounded when Congress passed the Military Commissions Act of 2006 in October, 2006, statutorily defining the term enemy combatant for the first time. By acknowledging the term enemy combatant, the court and the Congress gave this and future administrations permission to deprive people of their recognized rights and protections. Enemy combatant did not and does not exist under international law. Enemy combatant was nothing more than a generic term until February 2002, when the administration imbued it with a new and particular meaning that was designed to circumvent the Geneva Conventions and international human rights laws. In using the term, officials in the administration cited to a 1942 Supreme Court case, Ex Parte Quirin, although the administration's reliance on Quirin is flawed. This article focuses on the specific evolution and chronology of the term enemy combatant and the administration's inconsistent definitions, beginning with the introduction of the term in 2002. It reviews letters and memoranda issued by Pentagon Counsel William Haynes Jr., documents and publications issued by the Department of Defense and reports, orders and statements released by the administration. It argues that the Supreme Court had the opportunity to make a significant constitutional impact on the legitimacy and application of the term enemy combatant in both Hamdi and Hamdan, but failed to do so. The article also analyzes the new definition in the Military Commissions Act of 2006. The creation of the term enemy combatant was not an accident. What could be more convenient for the administration than to create a term that circumvents international law, shields the administration's treatment of detainees and deliberately confuses issues? In addition, the term enemy combatant was intended, in part, to shelter individual members of the administration from being charged with war crimes. How could this happen in our American system of government? How did the administration succeed in patently ignoring international and American constitutional law, norms and standards? This article is a cautionary tale. Even if everything was righted today, we still must look back at how an executive deliberately disregarded existing law and treated enemy combatants with cruelty and, at times, with inhumanity. Peter J. Honigsberg Civil Rights Constitutional Law Human Rights Law International Law Military Law Terrorism & Law http://works.bepress.com/peter_honigsberg/4 http://works.bepress.com/peter_honigsberg/4 Wed, 29 Apr 2009 15:31:14 PDT If you ask people what comes to mind when they hear the terms civil rights and Civil Rights Movement, they will likely reply by referring to Martin Luther King and the African American struggle for dignity and equality. Essentially, people may be making two oversimplified assumptions. The first is that Martin Luther King and the Civil Rights Movement are one and the same. The second is that the term civil rights refers exclusively to the African American struggle. I briefly address both of these assumptions in my review of this two-volume anthology Reporting Civil Rights, published in 2003, edited by Clayborne Carson, et.al, and covering the years 1941 to 1973. The anthology evocatively transports the reader back into the sounds and spirit of the times. The volumes provide us with stories that appeared in such publications as the Saturday Evening Post, the New York Times, and Time Magazine, as well as essays, opinion pieces and portions of novels and memoirs from some of the most astute observers of the times. In making their choices on what to include and to exclude, the editors necessarily editorialized. But the editors for Reporting Civil Rights would have improved their compilation if they had added commentary explaining their selection process. For example, there is a strong slant favoring Martin Luther King - perhaps because Clayborne Carson is the senior editor of the Martin Luther King Papers Project at Stanford University. The contributions of more radical and underreported spokesmen such as Malcolm X, members of the Black Panthers, and the black power movement are diminished. Similarly, the volumes focus on the large issues of the era that appeared most often on the national radar screen. Substantially less attention is paid to the grassroots organizations and their heroic leaders who made huge differences in their communities, but who did not capture the national media attention. Whether the reader lived through these times or not, he or she will find many of the pieces, all of which were written in the throes of the movement, remarkable in their evocation of time and place. The editors have provided us with a window into the major social movement of the century, a bygone era that will forever inform our American culture. Peter J. Honigsberg Civil Rights http://works.bepress.com/peter_honigsberg/3 http://works.bepress.com/peter_honigsberg/3 Wed, 29 Apr 2009 15:23:55 PDT As the twentieth century drew to a close, the record companies were scrambling in desperation, attempting to shut down a tiny company named Napster. Employing Peer-to-Peer architecture, Napster had created a simple file-sharing program that allowed people to search each other's computer hard drives for songs and transfer the songs to their own hard drives for free. In its first year of operation, Napster became the fastest growing Internet site in history, reaching more than 20 million people. The record companies screamed "piracy," claiming that Napster interfered with their copyrights. Although it was not necessarily in their best interests, the record companies - dependent on an antiquated business model - were intent on shutting Napster down. Indeed, Napster lost to the record companies in the Ninth Circuit and soon became defunct. But the record companies' victory was a Pyrrhic one. The genie had been released from the bottle, and the music business would never be the same. Although this essay was published in 2002, this essay is of historical significance. It provides important context to the fast-moving issues of Internet downloading today. The essay also narrates Napster's litigation history and describes the old music business distribution model of manufacturing albums, packaging albums, placing the albums on pallets and delivering the albums to music stores. At the time that Napster turned the music business upside down, the music companies' primary objective was to control the promotion and distribution of its music, regardless of whether it was really in their best economic interests. This essay suggested a "compulsory license" model as a resolution that would have satisfied the record companies' fear of copyright exploitation and still allowed innovation. But since the record companies were fundamentally opposed to any resolution that would have diminished their control, they convinced the Congress not to adopt the compulsory license proposal. Peter J. Honigsberg Intellectual Property http://works.bepress.com/peter_honigsberg/2 http://works.bepress.com/peter_honigsberg/2 Wed, 29 Apr 2009 15:16:56 PDT Crossing Border Street is a first-hand account of the author's work, as a law student, in the civil rights movement in Louisiana in the late sixties. He worked mostly in Bogalusa, near the Mississippi border, with the Deacons for Defense and Justice. The Deacons were one of the first modern-day black groups to carry guns and respond with force against the Ku Klux Klan. In examining the grassroots struggle of the Deacons in its fight for integration and equality, Honigsberg's narrative evokes the emotions and personal dangers that this little-known activist group and their courageous leaders faced.Unlike most law students, Honigsberg also participated in marches, integrations and demonstrations. On the way to integrating a beach with black and white colleagues, he witnessed a prominent civil rights leader lift his car's trunk to display a cache of carbines and grenades to a station attendant who refused to fill the tank with gas. Honigsberg also tells the story of Gary Duncan, a black man who was charged with battery for touching a white boy in Plaquemines Parish, the fiefdom of arch-segregationist Leander Perez. Honigsberg was part of the team that took the case to the Supreme Court, establishing the constitutional right to a jury trial. Peter J. Honigsberg Civil Rights Constitutional Law http://works.bepress.com/peter_honigsberg/1 http://works.bepress.com/peter_honigsberg/1 Wed, 29 Apr 2009 15:08:10 PDT This study breaks new ground by examining the evolution of national security, constitutional, humanitarian and human rights law from September 11, 2001 to November 4, 2008, Election Day. The book, in five parts, takes a sprawling subject and makes it coherent through stories of how America violated the rule of law and human rights of its detainees in America, Guantanamo and overseas. It focuses on the stories of individuals while examining the law, and is based on interviews, extensive analysis of government documents and the author's trip to Guantanamo. It includes a Foreword by Dean Erwin Chemerinsky of the University of California, School of Law, Irvine.Part One describes how the Bush Administration manipulated the law as well as made up the law under the guise of executive power. It analyzes the generic term "enemy combatant" and how it was used to circumvent the Geneva Conventions, discusses the "torture memos" and studies the administration's promotion of executive power.Part Two looks at Detention in America: the inhumane treatment and torture of the men in the Naval Brig in Charleston, S.C. (Jose Padilla, Yaser Hamdi and Ali al Marri); the early days of preventive detention for immigrants and material witnesses; and the applicable federal and Supreme Court decisions. Part Three looks at Detention in Guantanamo, covering: CSRT hearings, hunger strikes, suicides, cruel, inhumane, degrading treatment and torture of detainees, military tribunals, the right to habeas and, of course, the evolution of the federal and Supreme Court cases of Rasul, Hamdan and Boumediene.Part Four looks at Detention Overseas, that is, extraordinary rendition, where suspected terrorists were flown to prisons controlled by foreign nations or the CIA ("black sites") to be tortured for intelligence information. This Part examines the cases of Khalid El Masri (a case of mistaken identity), Maher Arar and Abu Omar.Part Five looks at Detention in America where the defendants ultimately received due process. The Part examines the cases of John Walker Lindh (who had been tortured for 54 days), Zacarias Moussaoui; Richard Reid and the Lackawanna Six.In the Addendum, Professor Honigsberg writes about his trip to Guantanamo in 2007 and includes the bizarre story of his application process, as well as the visit. Peter J. Honigsberg Civil Rights Constitutional Law Human Rights Law International Law Military Law Terrorism & Law