Guantanamo and Beyond: Reflections on the Past, Present, and Future of Preventive Detention
Kristine A. Huskey
Georgetown University Law Center
March 1, 2011
University of New Hampshire Law Review, Vol. 9, pp. 183, March 2011
For most of the men held at Guantánamo, January 11, 2011 marked the beginning of a decade of detention without charge or trial in stark prison conditions. Two years after President Obama’s executive order in 2009 calling for its closure, the prison camp remains open with no political will by either party to close it. Whether Guantánamo closes, however, is no longer the most significant national security detention issue, though it should close for symbolic purposes and, of course, to the men there, its closure is surely far from insignificant. The most pressing question for our democratic society is whether military preventive detention - whether at Guantánamo or elsewhere - will continue to evolve into a permanent fixture in American’s national security landscape.
This article reviews the pertinent legislation over the last several years, including the National Defense Authorization Act for 2011, that have severely restricted the executive’s ability to close Guantánamo. Importantly, it also reviews detention case law and the current administration’s policy statements and actions, which have clearly evinced the goal to retain indefinite preventive detention under the “laws of war” as a tool in the national security toolbox long after U.S. troops leave Iraq and Afghanistan. Among other factors, the pending executive order providing for parole-like review hearings of the Guantánamo detentions, the D.C. Circuit’s approach to the habeas cases, and the Maqaleh Bagram case all lead to the unavoidable conclusion that the U.S. has already institutionalized a military indefinite preventive detention regime. Such an institution is profoundly problematic when it allows the U.S. to assert the authority under the laws of war to pick up any individual anywhere in the world, who is a suspected a member of al Qaeda or 'associated forces' but is dressed as a civilian, and detain them in prison-like conditions without charge or trial until the end of a war, which has no foreseeable or verifiable end.
Number of Pages in PDF File: 15
Keywords: Guantanamo, preventive detention, indefinite detention, National Defense Authorization Act, NDAA, MaqalehAccepted Paper Series
Date posted: August 13, 2012
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