Detention of Terrorist Suspects

[Lynne Henderson]

Interestingly, I heard John Ashcroft  on TVa few days ago saying the lack
of legal challenges demonstrated that the actions re: detention
etc.,  taken thus far were legal.  My reaction to that was, "huh?!"  Is
something legal just because no one has sued yet?  Surely that cannot be
true.
Lynne


At 03:03 PM 11/29/2001 -0500, you wrote:
>A number of fine points have been made in response to my admittedly
>excessively emotional response to Gonzalez's statement.  Allow me to
>respond.  First, I did not quote (as Prof. Volokh mistakenly claimed)
>Gonzalez.  When I heard Gonzalez say "country of origin," I interpreted that
>as national origin -- which I think is a fair but (I grant) perhaps less
>accurate interpretation.  Second, regardless of my interpretation, detention
>on the basis of national origin or alienage is clearly illegal under
>international law because such discrimination violates jus cogens.  There is
>no strict scrutiny or minimal rationality analysis of whether governmental
>interference with a jus cogens protected right is justified.  It's just
>illegal.  (However, international law permits the limitation of political
>activity by aliens and the detention of aliens who are nationals of an enemy
>state during war -- which are not applicable to this case.)  Whether
>Gonzalez's statement actually reflects the Administration's policy and
>actions, I just don't know.  I have heard no news about legal challenges to
>the detention of the thousands that have been or are being detained as a
>consequence of the September 11th events.  I just thought that Gonzalez's
>statement was a disservice to his client.
>
>Francisco Forrest Martin
>Ariel F. Sallows Professor of Human Rights
>University of Saskatchewan College of Law

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