Douglas L. Colbert, Liberating the Thirteenth Amendment 30
Harvard Civ. Rights Civ. LibsLaw Rev. (1995), AR. Amar, Remember the Thirteenth 10
Const. Commentary 403 (LS. Landervelde, The Labor Vision of the Thirteenth Amendment 138
Univ. Penn. LawRev. 437 (1989), W. Carter, A Thirteenth Amendment Framework for Combating Racial
Profiling,” 39
Harvard Civ. Rights Civ. Libs Law Rev. (winter 2004). W. J. Brennan, State Constitutions and the Protection of Individual Rights 90
Harvard LawRev. 489 (1977). E. Malz, False Prophet-Justice Brennan and the Theory of State Constitutional Law 15
Hastings Const. Quarterly 1988, and J. A. Gardner, The Failed Discourse of State
Constitutionalism,” 90
Michigan Law Rev. (1992). Compare Geoffrey R. Stone,
War and Liberty An American Dilemma, 1790 to the Present (New York, 2007), and Richard Posner,
Not a Suicide Pact The Constitution in Time ofNational Emergency (Oxford, 2006).
51.
Rasul v. Bush, 542 US. 466 (2004). On the same day the Court found a violation of the due process rights of an American citizen who had been taken to a military brig in South Carolina without charge or access to his lawyer, or limit of time, in
Hamdi v. Rumsfeld, 542 US. 507
(2004).
52.
Hamdan v. Rumsfeld, 548 US. 557 (2006).
53.
Boumediene v. Bush, 553 US. — (2008). The Court sidestepped its decision in
Johnson v.Eisentragger, 339 US. 763 (1950), which denied alien enemy prisoners held outside American sovereign territory had aright to Habeas in a federal court. The Boumediene Court accepted federal court jurisdiction in the case of Guantanamo prisoners. The base had been under de facto American jurisdiction for over a hundred years. President Bush condemned the decision,
as
did John McCain, though Barack Obama did not. About 245 prisoners remain and have been released without charge. About twenty faced trial by military commission. The
Pentagon believes that as many as sixty have returned to commit further terrorist acts. The proposition first asserted by Chief Justice John Marshall in
Marbury v. Madison, 1 Cranch
(5 US) 137, 177 (1803).
55.
www.whitehouse.gov/blog/inaugural-address.
56.
Lawyers on all sides agree that this will not be a simple matter. Of the remaining 245 prisoners,
only twenty-one currently face charges. The rest will either be repatriated, where this is possible, or sent to countries willing to accept them. About 100 are from Yemen. So far
European countries have shown no enthusiasm. For those who proceed to trial it is not yet known where the trial will take place (there is widespread opposition to having them on
American soil) and whether it will be in civilian or military courts. Successful convictions have been jeopardized by interrogation methods.
Constitutional Powers
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