Document Type

Article

Publication Date

2009

Abstract

Counterterrorism efforts by the U.S. government since 2001 have produced numerous legal controversies. One of the most controversial subjects has been the detention of individuals allegedly involved with terrorist organizations or activities. Unlike traditional criminal detainees, such persons are not held pursuant to indictment on charges pending trial or to a verdict of conviction. Unlike traditional military detainees, they are not battlefield captives from combat in a war zone against the military forces of another nation. Rather, terrorist detainees are held based on the individual's alleged connections to terrorist organizations and activities, without more. Terrorist detention, so defined, is an extraordinary measure departing from traditional criminal and military detention models. Consequently, terrorist detention must be justified by the extraordinary circumstances caused by the threat of terrorism which confound the application of traditional legal models. To date, however, the law governing terrorist detentions has been insufficiently bound to such justifications, and many important legal issues remain unaddressed. Accordingly, terrorist detention is ripe for significant legal reform.

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