Back to Basics: Detaining Our Enemies in a Confused Legal Landscape

Abstract

Abstract : Through two Administrations and almost nine years of war, the United States has struggled to develop and disseminate a coherent, lawful policy on detainees. The increasing number of individuals detained in the United States, far away from what we have traditionally thought of as the battlefield, has only raised the visibility and importance of this issue while at the same time adding additional layers of legal complexity. This paper suggests an approach for bringing clarity to United States policy on detainees. It suggests that law of war detention should be a starting point rather than a last resort for those terror suspects with connections to al Qaeda, the Taliban or associated groups. These individuals can be lawfully detained on that basis alone. If investigation turns up sufficient evidence of criminal wrongdoing, then the detained individuals can be prosecuted for that as well. By using the example of Panama's General Manual Noriega and his series of court cases spanning some twenty years, the paper discusses how an individual can be held under both criminal law and law of war. These are completely independent bases for detention and, as General Noriega's case shows, both must be satisfied before an individual is lawfully required to be released.