A Legal Framework for Detaining Terrorists: Enact a Law to End the Clash over Rights

Coauthored with Mark Gitenstein, Brookings Institution, November 15, 2007

Six years after the September 11 attacks, the United States still lacks a stable, legislatively established policy for detaining suspected foreign fighters captured in the war on terrorism. American detention policy has eroded this country’s international prestige and public image, embroiled its military in continuous litigation, and cast a pall of legal uncertainty and impropriety over the detention of several hundred suspected enemy fighters. (The Supreme Court will soon take up a new round of litigation over detainees and may well undermine further the detention system the current administration has put in place.)

Developing rules for detaining suspected enemies engaged in unconventional warfare against the United States and its interests represent the core challenge facing American legal policy in the war on terror.


Specific elements of a long-term detention regime that should be supported by the next president include:

  • An impartial decision-maker in charge of making status determinations
  • Basic procedural protections for detainees, including the assistance of counsel, the ability to see and challenge a reasonable summary of the government’s evidence, and the ability to call witnesses
  • A written, public opinion explaining the basis for each status determination, and review of such determinations by federal civilian courts
  • For those deemed properly subject to detention, some form of regularized ongoing judicial review to ensure that continued detention is necessary and appropriate.

To read the full paper, click here.

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