Unraveling Guantanamo: Detention, Trials and the 'Global War' Paradigm

New Directions for the Department of Justice, No. 1, 2009

NYU School of Law, Public Law Research Paper No. 09-08

29 Pages Posted: 5 Mar 2009

Date Written: March 4, 2009

Abstract

Closing Guantanamo presents a daunting challenge, both politically and practically. The detainees cannot be transferred readily to other locations abroad, and yet many commentators insist that they are too dangerous to be held within the United States. Under current law the detainees cannot continue to be held unless they are charged with crimes; yet the existing military commission system is unsustainable, and many detainees allegedly are impossible to prosecute in traditional courts without jeopardizing classified information. These immediate issues are also symptoms of a more basic problem - the concept of a "global war on terror." Clear thinking about solutions to Guantanamo cannot begin in the absence of clear thinking about the legitimacy of the global war paradigm.

The immediate need to address Guantanamo and the broader imperative to find a sustainable framework for the future can both be met by a straightforward principle - the unqualified acceptance of pre-9/11 rules of international law and domestic due process. The difficulties attributed to that traditional approach are not wholly imaginary, but they have been misunderstood and shamelessly exaggerated. Familiar rules and institutions, properly managed, possess ample resources to cope with the challenges of modern terrorism.

Suggested Citation

Schulhofer, Stephen J., Unraveling Guantanamo: Detention, Trials and the 'Global War' Paradigm (March 4, 2009). New Directions for the Department of Justice, No. 1, 2009; NYU School of Law, Public Law Research Paper No. 09-08. Available at SSRN: https://ssrn.com/abstract=1353524

Stephen J. Schulhofer (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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