Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing
67 Pages Posted: 14 Jun 2013 Last revised: 5 Feb 2014
Date Written: December 5, 2013
While there has been a great deal of focus on who may be detained in the armed conflict with al Qaeda and associated forces, (the so-called “war on terror”), there has been relatively little consideration of how long individuals may be held. The Article provides a new approach to this issue. It argues that review of long-term terrorism detentions should be addressed not merely through application of the laws of war, which permit detention until the end of the conflict, but should also draw upon principles rooted in criminal sentencing.
The Article makes two main points: first, that criminal sentencing highlights the value of a judicial proceeding focused on the length of detention; and second that the United States should develop a detention standard that incorporates a broader range of factors about an individual, his background, and past conduct to assess whether he should continue to be held. This standard may be utilized whether review of continued detention takes place in a judicial or an administrative proceeding.
The Article not only seeks practical solutions to the seemingly intractable problems posed by Guantanamo. It also attempts to re-frame the larger debate surrounding the war on terrorism, by demonstrating how traditional legal concepts, such as those governing the detention of combatants, must be adapted given the nature of the armed conflict the U.S. is waging.
Keywords: international law, international humanitarian law, criminal law, constitutional law, national security law, federal court
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