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The Power to Detain: Detention of Terrorism Suspects After 9/11 (with Samuel Adelsberg, Spencer Amdur, et al.), 38 Yale Journal of International Law 123 (2013)


U.S. counterterrorism operations today are being carried out on an

unprecedented scale. Since the attacks of September 11, 2001, a key element of

these counterterrorism operations has been the detention of suspected terrorists.

As of mid-2012, the United States held 168 terrorism suspects at GuantAnamo

Bay, Cuba, and roughly three thousand in Afghanistan. Even after

transferring most of the Afghan detainees to Afghan control in September

2012, the United States arranged to "maintain control over dozens of foreign

detainees in Afghanistan for the indefinite future." The docket of the Court of

Appeals for the District of Columbia Circuit continues to be filled with cases

filed by detainees challenging detentions that, in some cases, are entering a

second decade. Meanwhile, Congress and the President have repeatedly

sparred over detention-related issues, including the scope of military

commissions set up to try law-of-war detainees, the transfer of detainees held

abroad to prisons within the United States, the propriety of prosecuting

terrorism suspects in U.S. federal courts, and the unlimited detention of

terrorism suspects without trial. Yet the sources of the U.S. government's

authority to detain suspected terrorists, and the limitations on that authority,

remain ill-defined.

This Article aims to fill this gap by clarifying the reach and limits of

existing sources of U.S. government authority to detain suspected terrorists in

the ongoing conflict with al-Qaeda and associated forces. While prior

scholarship has examined pieces of the detention picture, this Article seeks to

offer a more comprehensive view-examining both statutory and constitutional

authority for law-of-war detention, and comparing it to detention and

prosecution of terrorism suspects under domestic criminal law. In the process,

the Article shows that law-of-war detention has weaknesses not often

recognized by those who champion its use for terrorism suspects. In many

cases, criminal law detention and prosecution of terrorism suspects is not only

more consistent with U.S. legal principles and commitments, but is also likely

to be more effective in battling terrorism.

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