Editors’ Picks: The Power to Detain

Annotations by Jiou Park, a 2013 graduate of New York University School of Law.

Kenneth Roth, After Guantanamo: The Case Against Preventive Detention, Foreign Affairs (2008).

Kenneth Roth, Executive Director of Human Rights Watch, debates the appropriateness of setting up an administrative detention system as an alternative to Guantanamo. Writing in mid-2008, Roth notes the increasingly bipartisan desire to close Guantanamo and argues in favor of using the U.S. criminal justice system to try terrorism cases, including the Guantanamo detainees, rather than establishing a system of preventive detention. Roth argues that the U.S. criminal justice system is fully capable of handling terrorism cases. To support his proposal, Roth first addresses the most common argument against using criminal prosecution for terrorism cases: criminal prosecution addresses crimes that have already been committed, whereas terrorism-related detention prevents dangerous acts from occurring. According to Roth, the already well-established crime of conspiracy provides a solution: under U.S. law, the crime of conspiracy can occur whether or not the intended illegal act has been carried out, thus adding a preventive (or forward-looking) aspect to the prosecution. Roth also acknowledges concerns regarding the differing needs and methods of interrogation for criminal and terrorism suspects. However, Roth argues that criminal procedures can in fact encourage cooperation of the suspects and cautions against using coercive interrogation methods as an excuse to further violate the rights of the detainees by subjecting them to a full-fledged administrative detention regime. In addition, Roth contends that statutes such as the Classified Information Procedures Act can ensure the protection of government secrets including intelligence sources and methods, allowing the criminal justice system to address terrorism cases without running the risk of disclosing sensitive national security information. Although he acknowledges that incorporating terrorism cases under the criminal justice system has its risks, Roth maintains that adopting an administrative detention system would damage not only the existing criminal justice system but also constitutional due process protections.  find online » [Foreign Affairs]

Matthew Waxman, Detention as Targeting: Standards of Certainty and Detention of Suspected Terrorists, Columbia Law Review vol. 108, 1365 (2008).

In this article, Professor Matthew Waxman addresses the question of how certain a state must be in order to detain an individual as an enemy combatant or terrorist. Waxman observes the similarities between conventional targeting rules under the laws of war and detentions during the conflict with al-Qaeda. He argues that the standards of certainty and mechanisms of enforcement (such as political pressure and mutual risk-taking, which ensures that belligerents abide by the laws of war) in targeting decisions can provide a useful analytical framework for detention rules. Waxman begins by examining the two existing paradigms for detention: criminal law and the laws of war. Acknowledging that neither approach is perfectly apposite for detention of suspected terrorists, Waxman puts aside the criminal justice system, which he finds relatively clear-and well developed, and focuses on law-of-war detentions, where he thinks an analytic gap exists. According to Waxman, targeting laws are governed by a “reasonableness standard,” which balances humanitarian concerns with military needs. Waxman argues that the uncertainty of the identity of the people being targeted and the balancing of military necessity and humanitarian interest in the use of force pose a problem similar to the decision to detain an individual as a suspected terrorist. Waxman asserts that after all, the problem of differentiating between an enemy combatant and a civilian for the purposes of detention poses a question analogous to targeting: “Is the individual an enemy fighter (i.e. a military target) and therefore subject to attack with force (i.e. capture and detention)?”  Following this analogy, Waxman suggests that targeting rules can provide a starting point for detention rules. Moreover, Waxman asserts that because detention decisions can be reversed through the release of the detainee, whereas targeting decisions resulting in death cannot be reversed, the standard of certainty for detention should be lower than for targeting.  However, Waxman does acknowledge that important differences exist between targeting and detention, such as the temporal aspect of detention and the different substantive and procedural alternatives for detention.  Nevertheless, Waxman underscores the need to develop a more robust detention legal regime, and suggests that a ‘refining’ of the targeting law can be an appropriate starting point. find online » [Columbia Law Review]

Robert Chesney and Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, Stanford Law Review vol. 60 Issue 4, 1079 (2008).

In this article, Professors Robert Chesney and Jack Goldsmith describe how the criminal and military detention models have changed after 9/11. Chesney and Goldsmith examine two aspects of each model: (i) the criteria used to determine who may be properly detained and (ii) the procedural safeguards provided to the detainees. Traditionally, the criminal model used the conduct of the person as the main criteria and provided robust procedural requirements to protect individuals from being wrongfully convicted. In contrast, the military model focused on the status and association of the individual and provided few procedural safeguards. Although they focus on post-9/11 developments, Chesney and Goldsmith note that changes to these models began even prior to 9/11. For example, the criminal law system became more preventive, human rights standards began to influence the laws of war, and modern terrorism increasingly was seen as a military rather than a criminal threat. Notwithstanding these early changes, the authors argue that after 9/11, the models both had to further adapt in order to address the specific threat posed by al-Qaeda, an amorphous and clandestine organization capable of inflicting mass casualties. As a result, the criminal model moved toward greater flexibility through the creative interpretation of existing statutes and the criminalization of membership in terrorist groups. In addition, the procedural rights related to a defendant’s access to sensitive information have been curtailed. The military model, on the other hand, adopted greater procedural protections such as combatant status reviews. Despite these changes, Chesney and Goldsmith see the existing detention models as inadequate and unsustainable and examine existing alternatives in detention criteria and procedural protection to inform the reform of detention practices. find online » [Stanford Law Review] 

David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorist, and War, California Law Review vol. 97, 693 (2009).

In this article, Professor David Cole examines the existing types of preventive detention and the potential for concomitant abuse. Although debates regarding preventive detention often ignore the pre-existing authority for such forms of detention, Cole notes that federal and state laws already permit preventive detention of individuals on various bases, including criminal and immigration violations, risk of recidivism, mental illness, the Constitution’s Suspension Clause, and grounds in relation to military conflicts. However, according to Cole, the existing authority to detain has been abused by wide-scale preventive detention that lacks sufficient safeguards. Cole notes that that such abuse exists despite the constitutional protections against unlawful preventive detention, and despite the Court’s reluctance to allow preventive detention unless it is necessitated by the inability of the criminal process to address the specific threat the detainee poses. Cole argues that this shows the need to restrict using the existing preventive detention regime for terrorism cases. In order to provide adequate regulation to the detention regime, Cole suggests that there must be various reforms in immigration law, material witness and material support statutes, and enemy-combatant detention authority. For example, ensuring that a hearing is conducted within a short time after the initial detention, the provision of counsel, and imposing a presumptive time limit are among the additional procedural safeguards Cole proposes to increase transparency in the existing preventive detention regime. Finally, Cole closes the article with words of caution against adopting a preventive detention statute in addition to the existing de facto authorities to detain, emphasizing that a preventive detention regime must be strictly limited to military detention stemming from an existing conflict.  find online » [California Law Review]

Ryan Goodman, The Detention of Civilians in Armed Conflict, 103 American Journal of International Law vol. 103, 48 (2009).

In this article, Professor Ryan Goodman focuses on aspects of the law of armed conflict (LOAC) commonly misconstrued and misappropriated when debating U.S. detention policy. Noting that a correct understanding of LOAC is important because its rules are often used as analogies, referents, and even outer boundaries in discussing the conflict with Al Qaeda, Goodman summarizes the contemporary LOAC regime that pertains to detention of individuals in armed conflict. The regime defines four different categories of subjects: 1) members of regular armed forces and irregular forces; 2) direct participants in hostilities (“unlawful combatants” in some circumstances); 3) indirect participants in hostilities (imperative security threats); and 4) innocent civilians. LOAC also regulates three different coercive measures: targeting, military trial, and detention. According to Goodman, both proponents and opponents of U.S. detention policy have improperly conflated or disaggregated domains of actors and powers of LOAC. Goodman examines three such mistakes. First, the U.S. government and proponents of U.S. detention policy have conflated direct participants in hostilities with indirect participants in hostilities, inappropriately broadening the U.S. definition of “direct participation” to include indirect participation. Second, opponents of U.S. detention policy have failed to acknowledge that distinct groups can be subject to the same coercive measures, by ignoring that both combatants and indirect participants can be lawfully detained under IHL. Third, both proponents and opponents of U.S. detention policy have conflated the power to prosecute and to detain, as well as the power to target and to detain. Goodman warns that such categorization mistakes can undercut the clarity of law, thus weakening the law’s legitimacy and legal compliance. He also cautions that improper definitions of key categories can undermine both humanitarian and security interests in future conflicts, and closes the article by stressing the dangers of distorting the LOAC regime.  find online » [American Journal of International Law]

Jonathan Hafetz, Habeas Corpus after 9/11: Confronting America’s New Global Detention System (2011).

In this book, Professor Jonathan Hafetz examines an interconnected global detention system composed of multiple military prisons under U.S. control, and argues that Guantanamo is only one part of this broader global phenomenon, which also included the military detention centers in Afghanistan, Iraq, and secret CIA prison facilities. According to Hafetz, this detention system allowed for arbitrary detention and torture without court review, giving the President of United States unprecedented authority to detain and interrogate. In turn, Hafetz examines the habeas corpus system, starting from its origin and tracing its development over the centuries. According to Hafetz, habeas corpus provides an important check against illegal detention and interrogation, protecting individuals against unlawful and arbitrary imprisonments by the executive. However, the protection of habeas corpus has been challenged by increasing efforts to undermine it, especially after 9/11. Hafetz explores the tension between the two forces through the three enemy combatant cases that reached the Supreme Court in 2004, Rasul, Hamdi, and Padilla, and the executive and legislative reactions to the rulings, including the Military Commissions Act of 2006, which Hafetz characterizes as a court-stripping measure. Hafetz concludes his book by providing the broad outline of his conception of a sustainable detention policy which includes extending habeas corpus to any prisoner in U.S. custody, a reexamination of the scope and application of habeas corpus, and the restriction of detention authority.  find online » [Amazon]

Congressional Research Service, Detention of US Persons as Enemy Belligerents (2012).

This Congressional Research Service (CRS) Report analyzes the existing laws and authorities that govern detention of U.S. persons as “enemy combatants.” The CRS Report chronicles the historic use of wartime detention authority within the U.S. against individuals deemed “enemies” or otherwise too dangerous to remain at large during wartime or other national emergencies. Beginning with precedents from the “Quasi War” with France, the War of 1812, and the Civil War, the report examines the use of detention power through landmark cases such as Ex Parte Milligan and Moyer v. Peabody. The report then turns to the cases and questions raised during the two World Wars, namely Ex Parte Quirin and Korematsu. The historic survey concludes with the discussion of detention powers during the Cold War and an examination of the Emergency Detention Act and the Non-Detention Act. The report proceeds to analyze more recent detention cases, including Hamdi, Padilla, Al-Marri, and Hedges v. Obama, noting that the Supreme Court has not issued clear guidance regarding whether U.S. persons can be detained as “enemy combatants” without trial. Furthermore, the report states that lower courts have not achieved consensus regarding the question left open by the Supreme Court. Among the uncertainty, this CRS Report nonetheless indicates that historical precedent and congressional practice make it difficult to presume that an authorization of the use of force confers authority to detain civilians without trial.  find online » [Congressional Research Service]

Jelena Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflicts and Other Situations of Violence, International Review of the Red Cross, Vol. 87, No. 858 (June 2005). 

Jelena Pejic, Legal Advisor at the International Committee of the Red Cross, examines the protection of the rights of the individual affected by internment or administrative detention during armed conflicts. For the purpose of her article, Pejic uses internment and administrative detention interchangeably to mean the deprivation of liberty by the executive branch without criminal charges and without the judiciary’s involvement. Noting a trend of increasing internment and administrative detention, Pejic briefly discusses the laws and principles governing such procedures, including the Fourth Geneva Convention, Article 75 of the Additional Protocol I, Common Article 3, and human rights law. From these, she derives a minimum set of principles and procedural safeguards applicable to internment and administrative detention. Pejic argues that internment and administrative detention is an exceptional measure that cannot be an alternative to criminal proceedings and should only be applied on an individual case-by-case basis. Additionally, internment and administrative detention must end as soon as the reason for the detention ceases to exist. And, internment/administrative detention must conform to the principle of legality, meaning that a person can only be deprived on liberty for specific reasons and in accordance with procedures provided by domestic and international law. In particular, Pejic argues that specific procedural safeguards are necessary, including (i) the right to information; (ii) the right to be registered and held in a recognized place of internment/administrative detention; (iii) the right to challenge the lawfulness of the detention; (iv) the right to periodical review; and (v) the right to counsel.   find online » [International Review of the Red Cross]

John Bellinger III and Vijay M. Padmanbhan, Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law, The American Journal of International Law, vol. 105, No. 2 (April 2011). 

John Bellinger III and Vijay Padmanbhan discuss the legal gaps in the Geneva Conventions regarding detention of persons during non-international armed conflict. Drawing from their experience as Legal Adviser and Attorney Adviser for the U.S. Department of State, the authors focus on four major issues: determining (i) which individuals are subject to detention; (ii) what procedural protections must be provided to the detainees; (iii) when the authority of the state to detain terminates; and (iv) what state’s obligations exist for repatriating individuals upon termination of detention. Through this discussion, the authors demonstrate the dearth of existing legal norms in the area of detention in non-international conflict and argue that there is a pressing need to develop new legal norms. The authors encourage international sharing of information and consensus building as well as the possibility of drafting an international treaty to facilitate the development of such legal norms.  find online » [The American Journal of International Law]

Benjamin Wittes, Robert M. Chesney, and Larkin Reynolds, The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking, Brookings (2012). 

In this ongoing collaborative effort, Wittes, Chesney and Reynolds map the contours of the emerging law of non-criminal counterterrorism detention. The report aims to describe and analyze federal courts’ work in this area, providing an account of the changing laws of detention in relation to a wide array of questions. In particular, the report focuses on the following issues: the burden of proof; the substantive scope of the government’s detention power; the relationship of a detainee with an enemy organization over time; whether the government is entitled to favorable presumptions regarding its evidence; the use of hearsay evidence; the use of evidence alleged to result from coercion; and the government’s use of a “mosaic theory” of evidentiary interpretation.   find online » [Brookings]


The Legal, Moral, and National Security Consequences of “Prolonged Detention,” A Hearing Before the Subcommittee on the Constitution of the U.S. Senate Judiciary Committee (2009).

On June 9, 2009, the U.S. Senate Judiciary Committee convened a hearing on The Legal, Moral, and National Security Consequences of “Prolonged Detention.” This hearing featured testimony from key witnesses representing a spectrum of positions and ideological perspectives: Sarah H Cleveland, Professor at Columbia Law School; Richard Klingler, Partner at Sidley Austin LLP; David H. Laufman, Partner at Kelley Drye and Warren LLP; Tom Malinowsky, Advocacy Director of Human Rights Watch (Malinowsky has been recently appointed as assistant secretary for Democracy, Human Rights, and Labor at the State Department); Elisa Massimino, CEO and Executive Director of Human Rights First; and David B. Rivkin Jr., Partner at Baker Hostetler LLP and Co-Chairman of Center for Law and Counterterrorism Foundation for Defense of Democracies. The statements and discussion cover a wide range of topics, including the closure of Guantanamo, the merits and flaws of preventive detention, adjudication of terrorism cases in Article III courts, non-military detention options, and Supreme Court jurisprudence on national security detention. The full transcript and submissions are available here.


Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications, A Hearing Before the Subcommittee on the Constitution, Civil Rights, and Human Rights of the U.S. Senate Judiciary Committee (2013).

Four years after the June 2009 hearing, a strikingly similar hearing was conducted before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights, entitled Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications. The witnesses included Major General Paul D. Eaton; Brigadier General Stephen N. Xenakis; Lieutenant Joshua M. Fryday, President of Center for Security Policy; Frank J. Gaffney, JR., the President and CEO of Human Rights First; Elisa Massimino; Congressman Adam Smith; and Congressman Mike Pompeo. The witnesses discussed legislative proposals to facilitate the closure of Guantanamo; the impact of Guantanamo on U.S. national security and morale; the physical and psychological state of Guantanamo detainees and their treatment; including the condition of detainees on hunger strike; access to counsel and military commissions to try detainees; and the moral, security, and fiscal costs of continuing to detainee prisoners at Guantanamo. Witness statements and a webcast of the full hearing can be found here.