The Power to Detain: Detention of Terrorism Suspects After 9/11

Abstract

U.S. counterterrorism operations today are being carried out on an unprecedented scale. Since the attacks of September 11, 2001, a key element of these counterterrorism operations has been the detention of suspected terrorists. As of mid-2012, the United States held 168 terrorism suspects at Guantanamo Bay, Cuba, and roughly three thousand in Afghanistan. Even after transferring most of the Afghan detainees to Afghan control in September 2012, the United States arranged to "maintain control over dozens of foreign detainees in Afghanistan for the indefinite future." The docket of the Court of Appeals for the District of Columbia Circuit continues to be filled with cases filed by detainees challenging detentions that, in some cases, are entering a second decade. Meanwhile, Congress and the President have repeatedly sparred over detention-related issues, including the scope of military commissions set up to try law-of-war detainees, the transfer of detainees held abroad to prisons within the United States, the propriety of prosecuting terrorism suspects in U.S. federal courts, and the unlimited detention of terrorism suspects without trial. Yet the sources of the U.S. government's authority to detain suspected terrorists, and the limitations on that authority, remain ill-defined. This Article aims to fill this gap by clarifying the reach and limits of existing sources of U.S. government authority to detain suspected terrorists in the ongoing conflict with al-Qaeda and associated forces. While prior scholarship has examined pieces of the detention picture, this Article seeks to offer a more comprehensive view-examining both statutory and constitutional authority for law-of-war detention, and comparing it to detention and prosecution of terrorism suspects under domestic criminal law. In the process, the Article shows that law-of-war detention has weaknesses not often recognized by those who champion its use for terrorism suspects. In many cases, criminal law detention and prosecution of terrorism suspects is not only more consistent with U.S. legal principles and commitments, but is also likely to be more effective in battling terrorism.