Detention of Terrorists in the Twenty-first Century

• Author: William K. Lietzau
• Position: Deputy Assistant Secretary of Defense, Rule of Law and Detainee Policy
• Pages: 323-345

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Detention of Terrorists in the

Twenty-first Century

William K. Lietzau*

I. Introduction

Ofall the instruments ofpower that may be employed to further national in-

terests, none yields collateral consequences that are more difficult to pre-

dict than the unleashing of military force. And with respect to the past decade's use

of that instrument, no consequence has engendered more debate, confusion or

passion than U.S. detention policy. This article attempts to clarify the reasons for

the controversy surrounding the policy—explaining it primarily as afunction of

the nature of twenty-first-century warfare, as opposed to competing political or

ideological perspectives, as many claim. It then proffers avision for moving past

the controversy.

At first, few recognized the juridical stressors associated with atwenty-first-

century armed conflict steeped in terrorism; most simply looked to old laws to ad-

dress this new type of conflict. In this context arift began to form and grew ever

wider with the years of conflict. 1Today, even many nations willing to share with

the United States the burdens of armed conflict have expressed significant dis-

comfort with U.S. legal endeavors related to detention. 2This dissonance and the

*Deputy Assistant Secretary of Defense, Rule of Law and Detainee Policy. This article is adapted

from aspeech given at Harvard University Law School in February 201 1at aconference titled

"Understanding Detention and Predicting Prosecutions: Legal Challenges and Legislative Op-

tions Ten Years After 9/ 11." The views in this article are those of the author and do not necessar-

ily reflect the views of the Department of Defense or the United States government.

Detention of Terrorists in the Twenty-first Century

disquiet among our allies have impeded the United States' implementation of its

plans, diminished its effectiveness in fighting terrorism and stymied the important

work that must be done to establish an effective legal regime for the longer conflict

ahead. It is not much of astretch to assert that the manner in which the United

States and its allies take up these challenges may very well reflect the most endur-

ing impact of the 9/11 attacks. Indeed, history teaches that changes in the law often

rank among the most noteworthy consequences of war. The goal, then, should be

first to diagnose correctly the problem confronting the United States and then to

identify the prescription that will yield a principled, credible and sustainable de-

tention policy.

The thesis is simple. Authority to detain and regulation of the conditions of de-

tention in the context of armed conflict derive most appropriately from the law of

war. As such, the general rules should be uncontroversial—armies have captured

and detained enemy fighters for years. But today's war is different: the enemy is not

aState, its fighters are not lawful combatants and the end of this conflict is not eas-

ily discerned. Extant law ofwar was not written for today's conflict, and an analysis

of it therefore exposes gaps that offend our twenty-first-century sensibilities. Fore-

most among the lacunae is the absence of appropriate processes for determining

who can and should be detained and for how long. The solution, then, is found in

today's efforts to identify the process that best ensures that we detain only those we

lawfully can detain and, even then, only those whose threat is so substantial that it

can be mitigated only by detention.

II. Identifying the Paradigm

The most fundamental component of controversy associated with the post-9/11

armed conflict is the confluence of legal regimes available to guide detentions.

Soon after 9/11, President George W. Bush made clear that he viewed al Qaeda's at-

tack as an act of war,3the response to which would include military force. 4What

became known as the "global war on terror" had begun. When President Barack H.

Obama took office, he distanced himself from some of the more controversial poli-

cies of his predecessor, and he discarded from the conflict's lexicon the terms

"global" and "terror." But he did not abandon the legal framework of armed con-

flict. President Obama, with deliberate clarity, still used the vocabulary of war

when describing the conflict with al Qaeda,5including in his Nobel Peace Prize

acceptance speech, where he explained why peace-loving nations sometimes have a

duty to engage in armed conflict.6Fundamental to understanding U.S. detention

policy over the past decade is the comprehension that authority for detention flows

from the nature of warfare and the law of war that regulates it.

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