A square peg in a round hole : stretching law of war detention too far
Laurie R. Blank
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Rutgers Law Review, Vol. 63, no. 4, Summer 2011, p. 1169-1193
This Article highlights three problems with the past and newly proposed indefinite detention of terrorist suspects, problems that expose how this system stretches the traditional notion of law of war detention beyond its limits. For many reasons, the system poses severe challenges to fundamental American principles of adjudication of individual accountability and granting individuals their "day in court." These broader questions concerning the morality of indefinite detention, the appropriate system for prosecution of terrorist suspects, and the lawfulness generally of detention in the context of counterterror operations are beyond the scope of this Article and are addressed in numerous law review articles, newspaper articles, and opinion pieces. This Article does not purport to analyze the full scope of detention options for persons captured within the context of the conflict with al-Qaeda and other terrorist groups. Rather, this Article will focus on the problems created by affixing the label of "law of war" or "under the laws of war" to the indefinite detention ongoing and further contemplated in Executive Order 13,567 and in the Terrorist Detention Review Reform Act : problems of definition, problems of purpose, and problems of posture.