Designing Detention: A Model Law for Terrorist Incapacitation

Coauthored with Colleen A. Peppard, Brookings Institution, June 26, 2009

A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects. Over the past several years, non-criminal detention of Al Qaeda and Taliban captives at Guantánamo Bay, Cuba has sharply divided the American polity. Since the change in administration, however, it has become increasingly clear that the United States—even under a Democratic administration and with substantial Democratic majorities in both houses of Congress—is not going to abandon long-term detention of terror suspects and revert to a pure law enforcement model for incapacitating them, and it is not going to deal with the population of Guantánamo on the basis of freeing everyone whom it cannot prosecute. While the developing consensus still has many dissenters, the real question now is not whether America will have some detention system, but what sort of detention system, designed by whom, and using what rules.


In his recent speech at the National Archives on national security strategy and law, President Obama placed himself solidly within this emerging body of thought. He recognized that protecting our national security may require a non-criminal detention system for terrorists who cannot be tried but are too dangerous to release. And he made clear that this system needs to be fair and rigorous, supervised by the federal courts and created by an act of Congress. The president called for a system that has “clear, defensible, and lawful standards,” “fair procedures so that we don’t make mistakes,” and “a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”

This paper, and the model legislative text we have attached as an appendix, is an effort to imagine such a regime at the granular level of actual legislative language. Much commentary and speculation has focused on the form that this new regime should take, rather than on the details of the many questions a detention regime will need to address. In the wake of the Supreme Court’s decision in Boumediene v. Bush, it is inevitable that federal judges will ultimately oversee any such detention system. Aside from this one general feature, however, the framework for the new system remains wide open in any number of respects.

To read the full paper, click here.

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