Coauthored with Robert M. Chesney, Larkin Reynolds and The Harvard Law School National Security Research Committee. Brookings Institution, May 12, 2011. In January 2010, the Governance Studies department at Brookings released a paper entitled “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.” In that paper, two of the present authors sought to describe […]
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Preventive Detention in American Theory and Practice
Coauthored with Adam Klein. Harvard National Security Journal, January 18, 2011 It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups1 and in a great deal of legal scholarship.2 It treats the […]
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 […]
The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking
Brookings Institution, January 22, 2010 President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges must write the rules governing military detention of terrorist suspects. As the United States reaches the president’s self-imposed January 22, […]
The Current Detainee Population of Guantánamo: An Empirical Study
Coauthored with Zaahira Wyne. Brookings Institution, December 16, 2008 The following report represents an effort both to document and to describe in as much detail as the public record will permit the current detainee population in American military custody at the Guantánamo Bay Naval Station in Cuba. Since the military brought the first detainees to […]
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, […]
Terrorism, the Military, and the Courts
Policy Review – Hoover Institution, June 1, 2007 The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again. At one point the previous year, they had actually arrested him, but not realizing who he was, had let him go. Unable to track him down now, they […]
Checks, Balances, and Wartime Detainees
Policy Review – Hoover Institution, April 1, 2005 The day the Supreme Court handed down what have collectively become known as the enemy combatant cases — June 28, 2004 — was both widely anticipated and widely received as a legal moment of truth for the Bush administration’s war on terrorism. The stakes could not have […]
Enemy Americans
The Atlantic Magazine, July / August 2004 June 10, 2002, the day John Ashcroft announced the arrest of Jose Padilla, marked a low point in Ashcroft’s career as Attorney General. The FBI had nabbed Padilla, a.k.a. Abdullah al-Muhajir, a full month earlier, at Chicago’s O’Hare International Airport, and Ashcroft happened to be in Moscow when […]
Benjamin Wittes 