Preventive detention in the law of armed conflict : throwing away the key ?
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Journal of national security law and policy, Vol. 6, no. 1, 2012, p. 167-205
More than ten years after 9/11, the “clear legal framework for handling alleged terrorists” promised by President Obama in 2009 is still undeveloped and “the country continues to hold suspects indefinitely, with no congressionally approved mechanism for regular judicial review.” Should terrorists be treated as criminals, involving traditional criminal law methods of detection, interrogation, arrest and trial? Or should they be treated as though they were involved in an armed conflict, which would involve detention and trial in accordance with a completely different set of rules and procedures? Neither model is a perfect fit to deal with twenty-first century terrorism. This paper reviews the framework to detain suspected terrorists preventively under the law of armed conflict together with the detention provisions of the NDAA of 2012. The paper concludes that the law relating to detention is still unclear, with many unanswered questions and the current law of armed conflict does not provide an adequate blueprint to deal with current and future detention challenges.