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The End of Privacy, 61 STANFORD LAW REVIEW 101 (2008)


How fragile a thing, law.

Not long ago, the notion that Americans could be seized off the streets, arrested, and jailed without probable cause might have seemed laughable. The power to incarcerate on mere suspicion or executive say-so belonged to dictatorships. "We allow our police to make arrests only on 'probable cause,'" we used to be told; "[a]rresting a person on suspicion, like arresting a person for investigation, is foreign to our system."

But in 2002, the President of the United States claimed and exercised the power to designate an individual, including an American citizen seized on American soil, an "unlawful enemy combatant"—and to imprison him on that basis, without probable cause and with limited if any judicial review.

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