Article

Unprivileged belligerents, preventive detention, and fundamental fairness : rethinking the review tribunal representation model

Geoffrey S. Corn, Peter A. Chickris

• Santa Clara journal of international law, Vol. 11, no. 1, 2012, p. 99-167

English

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This article will question whether denying captured terrorist in preventive detention legal representation is justified in light of the interests at stake in the detention review process, and ultimately assert that this is no longer a defensible model. In so doing, it will consider the fundamental balance between the risks and consequences of error and the feasibility of providing such assistance implicated by the preventive detention process, and how this balance influences the ongoing conclusion that lay representation by a military office is justified by the nature of the preventive detention process. While acknowledging that wartime preventive detentions fall outside the scope of precedents like Powell and Gideon, the article will draw from underlying principles reflected in these decisions to question whether the lay representation by military officers is sufficient to effectively advance the interests implicated in this non-punitive preventive detention process. Finally, the article will consider the probable objections to providing legal representation to detainees to include the feasibility of doing so.

• Full text

• The law of the possible in armed conflict : a comment on unprivileged belligerents, preventive detention, and fundamental fairness