Article

The power to detain : detention of terrorism suspects after 9/11

Oona Hathaway... [et al.]

• The Yale journal of international law, Vol. 38, no. 1, 2013, p. 124-177

English

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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.

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