43 Pages Posted: 25 Apr 2005
This Article answers one of the most perplexing questions arising from the war on terrorism, specifically, when should we release detainees kept at Camp Delta (Guantanamo Bay, Cuba)? The usual arguments on this matter verge on one extreme or the other. Some contend that the detainees should either be charged with criminal wrongdoing or released, an unnecessarily restrictive view that also ignores the fact that Congress has authorized the use of military force against the group and individuals responsible for the 9/11 attacks. During a traditional nation-state war, there is no requirement that the detaining State charge enemy prisoners of war with crimes to justify detaining them for the duration of the conflict. On the other hand, the Administration takes the view that the detainees can be held until the end of the war on terrorism a position that is tantamount to holding the detainees for the rest of their lives. What I propose is a non-criminal detention model that draws upon analogies to situations under domestic law in which persons can be detained involuntarily without having been charged with criminal wrongdoing. The ensuing detention model requires that the detainee be within the class of persons against whom Congress has authorized military force (making them the equivalent of enemy soldiers) and also that the government show on a periodic basis that the detainee remains dangerous. The advantage of this model is that it takes into account the invocation of military force but provides a measure of due process to ensure that individual detainees who no longer view themselves at war with us will be released.
Keywords: Detainees, Guantanamo, War on Terrorism, international law, military tribunals, detention, national security
JEL Classification: K14, K33, K42
Suggested Citation: Suggested Citation
Yin, Tung, Ending the War on Terrorism One Terrorist at a Time: A Non-Criminal Detention Model for Holding and Releasing Guantanamo Bay Detainees. U Iowa Legal Studies Research Paper No. 05-17. Available at SSRN: https://ssrn.com/abstract=708523