Military Detention in the 'War on Terrorism': Normalizing the Exceptional After 9/11

Jonathan Hafetz

Seton Hall Law School

March 16, 2012

Columbia Law Review Sidebar, Vol. 112, 2012

The decision to address terrorism through a war paradigm may represent the most significant change in U.S. national security policy in the decade following 9/11. While the United States still selectively treats terrorism as a criminal law enforcement matter, it has developed an alternative, military-based approach, rooted in the language and logic of a global armed conflict against al Qaeda and associated terrorist organizations (otherwise known as the “war on terror”).

This war paradigm, adopted by the Bush administration, has largely been continued by the Obama administration. It has been endorsed by Congress and sanctioned in many respects by the courts. Treating terrorism through the frame of armed conflict has affected various areas of national security policy, but none more deeply than the detention and prosecution of terrorism suspects. Among the features that distinguish U.S. military-based counter-terrorism detentions from criminal justice prosecutions are the fewer procedural safeguards afforded to detainees, the significantly lower evidentiary burden imposed on the government, heightened secrecy, fewer constraints on interrogations, more limited judicial review, and the open-ended nature of the confinement itself.

This piece examines the United States’ development of a new framework of indefinite military detention and military prosecution after 9/11. It argues that the war on terror has served as the vehicle for normalizing expansive, emergency-type powers that facilitate the interrogation and long-term incapacitation of terrorism suspects. It further describes how employing a war paradigm has helped institutionalize these new detention powers, provided a framework for their future expansion, and shaped the actions of lawmakers and courts.

Number of Pages in PDF File: 16

Keywords: Terrorism, Detention, Constitution, Interntional Law, Criminal Law

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Date posted: March 17, 2012  

Suggested Citation

Hafetz, Jonathan, Military Detention in the 'War on Terrorism': Normalizing the Exceptional After 9/11 (March 16, 2012). Columbia Law Review Sidebar, Vol. 112, 2012. Available at SSRN: http://ssrn.com/abstract=2025057

Contact Information

Jonathan Hafetz (Contact Author)
Seton Hall Law School ( email )
One Newark Center
Newark, NJ 07102-5210
United States
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