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What to Do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base


Kenneth Anderson


American University - Washington College of Law; Stanford University - The Hoover Institution on War, Revolution and Peace; Brookings Institution - Governance Studies


Harvard Journal of Law & Public Policy, Vol. 25, No. 2, pp. 593-634, Spring 2002

Abstract:     
This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly prisoners of war. Transnational terrorists are, however, best understood as both criminals and enemies - entitled neither to the full constitutional protections of the domestic political community but also not entitled to the protections as POWs.

The article analyzes the Third Geneva Convention and the requirements to be a legal combatant, as well as the procedures for determining who is or is not a legal combatant, and notes that the literal language of Article 5 of the Third Geneva Convention does not require that a tribunal be constituted to make such determinations although, as a matter of policy, the article urges that 1997 Department of Defense regulations establishing such military tribunals be used.

Number of Pages in PDF File: 44

Keywords: International law, international humanitarian law, Geneva Conventions, laws of war, armed conflict, terrorism, military commissions, constitutional law, prisoners of war, legal combatants, unprivileged belligerent, illegal combatant, Protocol I, Al Qaeda

JEL Classification: K10, K14, K33

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Date posted: April 21, 2006  

Suggested Citation

Anderson, Kenneth, What to Do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base. Available at SSRN: http://ssrn.com/abstract=896845

Contact Information

Kenneth Anderson (Contact Author)
American University - Washington College of Law ( email )
4801 Massachusetts Avenue N.W.
Washington, DC 20016
United States
Stanford University - The Hoover Institution on War, Revolution and Peace
Stanford, CA 94305-6010
United States
Brookings Institution - Governance Studies
1775 Massachusetts Ave, NW
Washington, DC 20036
United States
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