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For more than one hundred years, immigration law has stood on the doctrinal foundation that it is civil rather than criminal, and that its sanctions are administrative rather than punitive. Despite this formalistic distinction, immigration increasingly has been criminalized, forcing immigration and criminal law into closer, more frequent, and often uneasy contact, and conflating the noncitizen and the criminal into a single category of undesirability. Today, in the aftermath of September 11th, immigration is newly criminalized, this time by national security law, conjoining the identities of the noncitizen and the terrorist, and adding transnational dimension to the noncitizen's criminal character. Whenever noncitizens are involved, questions of membership, rights, culture, and belonging are never far behind. And so the criminalization of noncitizens, whether as "common criminals" or as terrorists, necessarily implicates multiple notions of citizenship, as applied to the other and the self, the "them" and the "us." This Article focuses on one area of national security lawthe rudimentary legal regime that governs detainees at Guantinamo Bay, Cuba, and in particular, the recently enacted Military Commissions Act of 2006.
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