Pretrial and Preventive Detention of Suspected Terrorists: Options and Constraints under International Law

By Cassel, Douglass | Journal of Criminal Law and Criminology, Spring 2008 | Go to article overview
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Pretrial and Preventive Detention of Suspected Terrorists: Options and Constraints under International Law


Cassel, Douglass, Journal of Criminal Law and Criminology


I. DETAINING SUSPECTED TERRORISTS: SCENARIOS UNDER INTERNATIONAL LAW

On what grounds, by what procedures, and within what limits under international law, may the United States lawfully detain suspected terrorists in order to interrogate or prosecute them, or to prevent them from planning future attacks? The actual detention practices of the United States in response to the terrorist attacks of September 11, 2001 (9/11) are now largely matters of public record. Suspected terrorists have been detained in the United States for purposes of deportation and criminal justice (whether as suspects or as material witnesses). They have been captured overseas on the battlefield, in occupied territory or elsewhere, and then detained by the military or CIA for purposes of interrogation and preventive security. A minority have eventually been held for military trial. Detentions of suspected terrorists have taken many forms, including the following examples.

Prosecutions. Caught on a flight to the United States with a lit match in his explosive-laden sneaker, so-called "shoe bomber" Richard Reid pied guilty and was sentenced to prison. (1) Al Qaeda collaborator Zacarias Moussaoui pled guilty to conspiracy to commit terrorist offenses and was sentenced to life in prison. (2) However, most successful federal prosecutions since 9/11 have targeted not terrorists, but persons who provide material support to terrorist groups. (3) These prosecutions have been relatively successful, despite recurrent problems of prosecutorial misconduct (4) and difficulties in reconciling the rights of the accused with the government's need to maintain confidential information. (5)

Material Witnesses. Where additional time was needed to investigate a suspect, prosecutors appear to have held some suspects temporarily as material witnesses in other criminal cases. (6)

Deportation. More than a thousand foreign citizens were detained in the United States in connection with the 9/11 investigation, including nearly 800 for civil immigration violations. (7) Even after immigration judges ordered some of them deported, some were kept in continued detention pending FBI clearance. (8)

Battlefield. The military detained suspected Taliban and Al Qaeda fighters at Bagram Air Base and elsewhere in Afghanistan. (9)

Occupied Territory. The military detained suspected terrorists and other suspected security risks (along with common criminals) at Abu Ghraib and other prisons in Iraq. (10)

Military, Detention for Prosecution. The military detained at least two dozen, and perhaps as many as 80 prisoners, at the United States Naval Base in Guantanamo Bay, Cuba, for prosecution before military commissions, (11) As of this writing, military commissions have tried only two prisoners, one of whom pled guilty and the other of whom was convicted only of a lesser charge. (12)

Military Detention of Foreign Citizens for Security and Interrogation. The military detained hundreds of other suspected foreign terrorists at Guantanamo, (13) most captured in the Afghan war or neighboring Pakistan, but some picked up in countries far from any recognized battlefield. (14) These prisoners were held without charges and without access to lawyers or courts until the Supreme Court ruled in 2004 that federal courts have jurisdiction to hear petitions for habeas corpus brought on their behalf. (15) Many were then afforded access to counsel (16) and to formal administrative review by Combatant Status Review Tribunals composed of military officers. (17) In 2005 and 2006, however, Congress purported to deny them habeas corpus, offering instead an alternative statutory mechanism for limited judicial review. (18) In 2008 the Supreme Court ruled that foreign citizens detained as enemy combatants at Guantanamo are constitutionally guaranteed the privilege of habeas corpus, and that the alternative statutory review was not an adequate substitute.

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