Academic journal article Duke Journal of Comparative & International Law

The Utility of Predicting Dangerousness in the War on Terror

Academic journal article Duke Journal of Comparative & International Law

The Utility of Predicting Dangerousness in the War on Terror

Article excerpt


In the aftermath of the September 11, 2001 attacks, questions surrounding the use of power in many contexts confronted the United States in the new context of a War on Terror. These fresh inquiries centered primarily on the definitions and distinctions between "war" and armed conflict, the treatment of prisoners captured in the course of hostilities abroad, and the murky outer limits of executive authority in this new historical context. Nowhere did these pressing questions emerge more explicitly than in the cases brought by detainees held in Guantanamo Bay, Cuba.

The line of habeas corpus cases emerging from Guantanamo has trended towards a gradual expansion of the habeas doctrine, a doctrine still not fully developed in its application to non-state actors suspected or convicted of terrorism. From Rasul to Boumediene, the Supreme Court has progressively clarified that the writ of habeas does indeed apply to certain foreign individuals in some international contexts. (1) However, as the preceding qualifying language suggests, the way in which the writ manifests on behalf of those individuals remains a murkier question. Since Boumediene, the United States Court of Appeals for the D.C. Circuit has been the principal court to address this question, as the circuit charged with maintaining jurisdiction over the Guantanamo habeas appeals.

In its attempts to formulate an appropriate habeas process that both respects the government's interests in both security and secrecy while also guarding the rights of detained individuals against excessive executive force, the D.C. Circuit has explored numerous procedural and substantive issues in the new light of international terrorism. Paradigmatically, the overarching struggle has remained whether and to what extent traditional notions of domestic criminal law and the international law of war should apply in the terrorism context. Scholars and political analysts have eagerly added their own opinions on the matter, opinions that run the spectrum from advocating for exclusively domestic criminal prosecutions2 to a wholesale adoption of the law of war framework, (3) with others recommending the establishment of a new judicial branch to handle this class of cases. (4)

In this Note, I will draw on this broad debate to consider a narrower inquiry left underutilized in some D.C. Circuit opinions: future dangerousness. In its most basic form, the future dangerousness inquiry requires executive agents to make an evidentiary showing of individual-specific harmful conduct, or risk of harmful conduct, to the community such that a tribunal deems continued detention necessary to ensure the safety of the community. This inquiry could serve as a useful substantive approach to bridge some of the concerns between the domestic law advocates and the international law advocates; though, I also argue that the domestic criminal law version of the dangerousness inquiry is better suited to these cases. This individual-specific approach also better comports with our nation's historic values than the current approach used by the D.C. Court of Appeals.

To this end, Part I gives an abbreviated overview of the current debate surrounding Guantanamo detainees, laying out the relevant interests and principles that are at stake. Part II briefly outlines Boumediene and some relevant D.C. Circuit opinions. Part III then considers how the dangerousness inquiry in the terrorism context might play out, and why the domestic version of that inquiry is suited to the present context.


The many debates surrounding the legal intricacies of the War on Terror are far too varied and nuanced for an in-depth survey in this Note. However, there is a more limited set of interests and principles that tend to propel the discussion in its many forms, and they are similarly present here. The overarching balancing inquiry is between the government's authority to detain, without trial, individuals it considers dangerous for national security purposes and an individual's interest in maintaining his personal liberty and autonomy (particularly if the individual is innocent of any wrongdoing). …

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