Academic journal article Journal of National Security Law & Policy

Addressing the Guantanamo "Legacy Problem": Bringing Law-of-War Prolonged Military Detention and Criminal Prosecution into Closer Alignment

Academic journal article Journal of National Security Law & Policy

Addressing the Guantanamo "Legacy Problem": Bringing Law-of-War Prolonged Military Detention and Criminal Prosecution into Closer Alignment

Article excerpt


It is commonplace that a war against a terrorist organization, such as al Qaeda, has the following three characteristics. First, it has certain elements of a traditional war: there is a defined enemy; attacks are made by the enemy against both military and civilian targets, both in this country and abroad; and the goal of the enemy is to destroy or defeat us as a nation. Second, it contains elements of criminal behavior by a criminal organization because the hostile actions allegedly engaged in by the members and supporters of the criminal organization are usually considered crimes either under the law of war or domestic U.S. law, or both.1 And finally, it may turn out to be a war without an end date.2

Given the fact that most of the hostile acts of the enemy in this war against the United States are crimes, the Obama administration has made criminal prosecution of the Guantanamo detainees, where feasible, a high priority. Incarceration upon conviction for those detainees who are prosecuted provides a legal basis for continuing imprisonment, at least for the length of the sentence. But for various legal reasons such as statute of limitations violations or non-extraterritoriality of the relevant statute, it is not feasible to successfully prosecute many of the detainees, even though they, too, have allegedly engaged in criminal behavior. As described in the President's remarks at the National Archives, the current approach for dealing with persons captured in the war against al Qaeda includes: (1) a preference for criminal prosecution of as many of the detainees as possible (in most cases, after the detention has been determined to be lawful through habeas corpus petitions by detainees); (2) release or transfer of many of them; and (3) prolonged detention of "a number," subject to periodic review of their continuing dangerousness.3

The possibility that any person, even someone who engaged in serious terrorist acts, might be detained indefinitely in military custody, possibly for a lifetime, without having been convicted of a crime sets offalarm bells in a society such as ours. Long-term detentions without criminal trials often have been a hallmark of a despotic government. Of course, there are instances in our legal system where, even without a criminal conviction, there is provision for long-term, possibly indefinite deprivation of an individual's liberty in an institutionalized setting, based on the presence of certain conditions - for example, civil commitment of a person who suffers from a mental disorder and is proved to be a danger to himself/herself or others.

Justice O'Connor, speaking for a plurality of the Court in Hamdi v. Rumsfeld, 4 expressed concern about indefinite, conceivably lifetime, detention based on a rationale of preventing the detainee from returning to the "battlefield."5 Significantly, she stated that if the duration of the conflict can be indefinite, the law-of-war understanding - detention for the duration of the conflict - may unravel.6 Justice O'Connor in her enigmatic phrasing seemed to be saying that "[t]he law-of-war understanding is not based on conflicts of indefinite duration"; it did not contemplate detention for a lifetime." Through the "unravel" statement, Justice O'Connor put a big, if ambiguous, question mark on the idea of prolonged, potentially lifetime detention based on a law-of-war rationale in the context of a war against a terrorist organization.

Despite the weightiness of the concerns about such prolonged detentions, both Presidents Bush and Obama acknowledged the need for the exercise of such a power in a limited number of cases. And under both presidents, the exercise of such authority was tempered somewhat by the establishment of a process of regular review of the cases of the detainees to determine whether they continued to be dangerous and, if not, providing for their release.7 Nevertheless, a substantial number of Guantanamo detainees - probably on the order of several dozen - seem likely to continue to be detained for a lengthy, indefinite period. …

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