[Pages 1-12]
LEGAL LINES IN SHIFTING SAND: IMMIGRATION LAW AND HUMAN RIGHTS IN THE WAKE OF SEPTEMBER 11TH
Daniel Kanstroom*

Abstract:  In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence of immigration and criminal law since the attacks; judicial review of military detentions at Guantanamo Bay and elsewhere; and noncitizens’ rights in the United States and the European Union. From their insights have emerged an outline for future research and the seeds of a pragmatic legal approach to these increasingly complex questions, all grounded in a deep respect for human rights.

[Pages 1-21]
DETENTION DECISIONS AND ACCESS TO HABEAS CORPUS FOR IMMIGRANTS FACING DEPORTATION
Nancy Morawetz*

Abstract:  In the wake of the recent Supreme Court decisions on the legal rights of “enemy combatants,” this Article highlights the continuing problems of immigration detainees and their lack of access to adequate judicial process. Based on the author’s extensive research into habeas corpus actions filed by inmates in the Oakdale Federal Detention Facility, this Article explores the consequences of limiting habeas actions to courts in the territorial site of the prison. Because the federal district court for the Western District of Louisiana refuses to issue stays of removal, detainees are deported before their habeas actions can be judged on the merits, and consequently are denied an adequate remedy for illegal government action.

[Pages 35-80]
UNDER ATTACK: THE PUBLIC'S RIGHT TO KNOW AND THE WAR ON TERROR
Mary-Rose Papandrea*

Abstract:  Since the September 11 attacks, courts have been reluctant to uphold the public’s right to obtain government information through the Freedom of Information Act and the First Amendment right of access. Given the doctrinal and statutory confusion plaguing both FOIA and the First Amendment right of access since their inception, and the judiciary’s historic tendency to defer to the Executive in matters implicating national security, recent appellate decision rejecting right to know claims may seem unsurprising. But a closer reading of these cases reveals that the judiciary’s failure to uphold the public’s right to government transparency has been based on a fundamental lack of appreciation for and hostility to the right’s very existence. These cases suggest that an enforceable right to know is unnecessary because the political process is adequate to force government disclosure. History amply demonstrates, however, the political process’s incapacity to compel government disclosure, particularly when the nation is in a time of crisis and the government activities at issue concern noncitizens.

[Pages 1-43]
BLURRING THE BOUNDARIES BETWEEN IMMIGRATION AND CRIME CONTROL AFTER SEPTEMBER 11TH
Teresa A. Miller*

Abstract:  Although the escalating criminalization of immigration law has been examined at length, the social control dimension of this phenomenon has gone relatively understudied. This Article attempts to remedy this deficiency by tracing the relationship between criminal punishment and immigration law, demonstrating that the War on Terror has further blurred these distinctions and exposing the social control function that pervades immigration law enforcement after September 11th prioritized counterterrorism. In doing so, the author draws upon the work of Daniel Kanstroom, Michael Welch, Jonathan Simon and Malcolm Feeley.

[Pages 1-36]
OFFSHORE DETAINEES AND THE ROLE OF COURTS AFTER RASUL V. BUSH: THE UNDERAPPRECIATED VIRTUES OF DEFERENTIAL REVIEW
David A. Martin*

Abstract:  In Rasul v. Bush, the Supreme Court held that federal courts have jurisdiction over habeas corpus petitions filed by detainees at the U.S. naval base at Guantanamo, but was silent on the standards and procedures to be applied to the petitions, and on whether habeas jurisdiction covers detainees at other foreign locations. To foster application of habeas at other military sites for longer-term detainees but maintain military effectiveness against terrorism, this Article sketches a regime for considering detention challenges that builds on a structure emerging in the wake of Rasul and its companion case, Hamdi v. Rumsfeld. Such claims would be heard by military tribunals, subject to narrow and deferential federal habeas review. Having military tribunals conduct the primary factfinding honors key military needs while affording procedural safeguards. Although such deference might disappoint some advocates, this approach carries several underappreciated advantages, because of the real-world dynamics of such review, principally to stimulate better internal checks and balances. Though deferring to military factfinding, courts would retain authority to consider de novo the validity of tribunal procedures, and would remain the ultimate arbiters of the substantive standards governing “enemy combatant” classifications.

[Pages 1-36]
THE ETHNIC AND RELIGIOUS PROFILING OF NONCITIZENS: NATIONAL SECURITY AND INTERNATIONAL HUMAN RIGHTS
Stephen H. Legomsky*

Abstract:  In response to the terrorist attacks of September 11, 2001 the United States has taken exceptional national security measures, particularly with respect to noncitizens. Many of those measures either expressly or at least arguably entail “profiling” young male Arabs and Muslims. They are summarized in the first section of this Article. The next section offers an analytical framework for evaluating a profiling program from a policy standpoint; it maintains that no profiling practice is justified unless it satisfies certain minimum requirements of rationality and weighted cost effectiveness. The final section suggests that some of the national security-related profiling practices raise serious issues of U.S. compliance with its obligations under the Convention on the Elimination of All Forms of Racial Discrimination.

[Pages 197-220]
CITIZENS AND NONCITIZENS IN EUROPE: EUROPEAN UNION MEASURES AGAINST TERRORISM AFTER SEPTEMBER 11
Sophie Robin-Olivier*

Abstract:  In the European Union, new anti-terror measures have had an impact on the lives of noncitizens, immigrants, and asylum seekers. This Essay outlines the rights guaranteed to both citizens and noncitizens under the European Convention on Human Rights and the EU treaties and evaluates how these rights have limited harsh treatment of noncitizens in the fight against terrorism. Although suspicion and rejection of noncitizens are widespread, there remains hope for broadening the principles of equality and fundamental rights to third country nationals through an open conception of the notion of European citizenship.

[Pages 221-260]
�MIGR�S OF THE KILLING FIELDS: THE DEPORTATION OF CAMBODIAN REFUGEES AS A VIOLATION OF INTERNATIONAL HUMAN RIGHTS
David L. Cheng*

Abstract:  On March 22, 2002, amidst political pressures exerted by the Bush administration, the government of Cambodia was forced into signing a repatriation agreement with the United States that immediately made some 1,600 Cambodian Americans, most of whom were fully acculturated teenagers with virtually no ties to Cambodia, deportable under the Immigration and Nationality Act’s aggravated felony provision. This Note addresses the aggravated felony provision as applied to Cambodian refugees and two legal theories that have been developed in order to prevent their deportation. Based on current trends by federal courts to incorporate international legal norms into American jurisprudence, particularly Beharry v. Reno and Maria v. McElroy, this Note contends that a more serious look at these two legal theories, which rely heavily on international human rights standards, is needed.

[Pages 261-299]
POTA: LESSONS LEARNED FROM INDIA'S ANTI-TERROR ACT
Chris Gagn�*

Abstract:  Shortly after the September 11 terrorist attacks in the United States, India passed its own anti-terrorism ordinance, the Prevention of Terrorism Act (POTA), following a terrorist attack on India’s Parliament building in December 2001. As with the USA PATRIOT Act, Indian legislators acted quickly, declaring the Act to be a necessary weapon against terrorism. But POTA, like the USA PATRIOT Act, had detractors, who criticized the law as unnecessary and draconian. Among other potentially dangerous measures, POTA allowed for 180-day detentions without charge, presumptions of guilt, sketchy review procedures, summary trials and trials in absentia. In many ways, POTA was harsher than the USA PATRIOT Act, but then again, so is India’s terrorist threat. In September 2004, a new central government repealed POTA, but other vigorous anti-terror laws are likely to follow. This Note evaluates the most dangerous provisions of POTA, how officials abused those provisions, and what lessons India and the United States can learn from the experience.