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Abstract:
Especially after the recent Supreme Court decision in Boumediene v. Bush, holding that constitutional habeas corpus rights apply to detainees at Guantanamo, a debate burns over whether Congress should enact new laws authorizing preventive "administrative detention" of suspected terrorists outside the criminal justice system, perhaps overseen by a new "National Security Court". This Article argues that both sides of this debate analyze the problem and propose solutions backwards: they begin by focusing on procedural issues and institutional design (e.g. what kind of judge will decide cases; how will the suspect defend himself; etc) rather than first deciding (1) what is the strategic purpose of proposed new law, and (2) whom does it therefore aim to detain. It argues that only after answering the questions "why detain?" and "detain whom?" can the procedural and institutional details be drawn up and proposals weighed intelligently. It then recommends some answers to those questions and proposes appropriate, corresponding procedural and institutional architecture.

Abstract:
Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter - what are the minimum baseline treatment standards required as a matter of international law? - has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter - what adjudicative processes does international law require for determining who may be detained? - eludes consensus and has become more controversial the longer the Afghan conflict continues. And the policy matter - in waging counterinsurgency warfare, how do foreign military forces transition military detention operations to effective civilian institutions? - has emerged as a critical strategic priority for which the law of armed conflict provides little instructive guidance.

After briefly outlining the basis of US and coalition detention operations, this article addresses each of these issues in turn. It concludes with some general observations about the convergence of law and strategy.

Abstract:
What makes the issue of American policing and national security so interesting and complex is the decentralized and localized nature of most law enforcement in the United States. These attributes give rise to three challenges for policing and national security. First, the decentralized and localized nature of American policing creates enormous organizational problems in coordinating national security activities, and combating terrorism in particular. Second, the counter-terrorism agenda may influence or disrupt systems and patterns of political accountability of local police agencies. Third, some of the same attributes of local policing that makes it a useful counter-terrorism tool also create difficulties in effectively carrying out more traditional functions. The tension that sometimes exists between law enforcement efforts to prosecute criminals and secret intelligence activities to monitor them is exacerbated when stretched across local-federal lines, and some actions that may be important from a national security perspective may also be disruptive to more traditional law and order police efforts within localized communities. Whether and how these challenges are resolved depend heavily not only responses generated through the political system but on the evolutionary trajectory of the national security threats that spawn them.

Abstract:
To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left open by recent Supreme Court detention cases, including Boumediene v. Bush. Targeting rules include a reasonable care standard for dealing with the practical and moral problems of protecting innocent civilians from injury amid clouds of doubt and misinformation, though the application of this standard in the detention context must account for differences such as a temporal dimension, available procedural mechanisms, and political and strategic context. Applying a targeting law methodology, this Article offers a law of war critique of past and current U.S. government detention policies. It recommends several ways to remedy them, including through an escalating standard of certainty as time in detention elapses, comparative consideration of accuracy-enhancing adjudication procedures, and greater decisionmaking transparency.