Ending the war on terrorism one terrorist at a time: a noncriminal detention model for holding and releasing Guantanamo Bay detainees.

• Author: Yin, Tung
• Position: Twenty-Fourth Federalist Society Student Symposium, Law and Freedom

1. DETENTION AT GUANTANAMO: WHO, WHY, AND IN WHAT CONDITIONS? A. Al Qaeda B. The United States's Response to the Attacks C. Camp X-Ray and Camp Delta II. CRIMINAL LAW VERSUS THE LAW OF ARMED CONFLICT A. Different Focuses and Purposes 1. Focus 2. Purpose of Confinement 3. Length of Confinement 4. Stigma of Having Been Convicted Versus Having Been Held as a POW 5. Summary B. Criminal Law and the War on Terrorism 1. Murder, Conspiracy, and Other Common Law-Based Crimes 2. Recent Antiterrorism Statutes: 18 U.S.C. [subsection] 2339A, 2339B 3. War Crimes III. NONCRIMINAL DETENTION A. Pretrial Detention B. Civil Commitment of the Mentally III C. Civil Commitment of Sex Offenders D. Medical Quarantines IV. NONCRIMINAL DETENTION IN THE WAR ON TERRORISM A. War or Military Force as the Limiting Factor 1. Defining the Class of Persons to be Detained 2. Application to the War on Terrorism B. Proving Dangerousness 1. Counsel 2. Periodic Evaluations 3. Choice of Forum C. A Note on the Conditions of Detention D. Comparison to the Bush Administration's Administrative Review Hearings V. CONCLUSION Several years after the September 11, 2001 terrorist attacks, the United States continues to detain as "enemy combatants" hundreds of persons captured in Afghanistan or Pakistan during the war on terrorism. (1) Many of those detainees have languished in the detention facility at the U.S. naval base at Guantanamo Bay, with no apparent prospect for release, particularly because this military conflict does not involve an enemy sovereign with whom peace can be negotiated. In addressing this problem, there are two dangers. Continuing to detain persons who are no longer threats to the United States is undesirable and is unlikely to persuade the rest of the world of our good intentions. On the other hand, releasing persons who in fact intend to commit mass violence against the United States or to rejoin the ranks of those fighting our military is also undesirable. (2)

   The Bush Administration has not given consistent signals about the future of the Guantanamo detainees. Early on, it seemed as if the detainees would be held indefinitely. Then-Deputy Assistant Attorney General John Yoo said forthrightly in a speech in late 2002, "Does it make sense to ever release them if you think they are going to continue to be dangerous, even though you can't convict them of a crime?" (3) The administration also suggested, drawing upon the rhetoric of the "war on terrorism," that the detainees would be released when the "war" was over. (4) In a sense, the administration's position that the detainees will be released when the war on terrorism is over is tantamount, as critics have charged, to saying that we will hold them for the rest of their lives. (5)

   Then, in October 2004, the deputy commander of the detention facility said that "the majority of [the detainees] will either be released or transferred to their own countries." (6) The deputy commander's superior quickly repudiated that statement. (7) And at the beginning of 2005, the Washington Post cited unnamed administration officials as pondering "long-term solutions" that included "indefinitely imprisoning suspected terrorists whom they do not want to set free or turn over to courts in the United States or other countries." (8) The administration has already begun to lay the groundwork for such long-term solutions by building new prison facilities at Guantanamo Bay. (9)

   The war on terrorism has exposed some cracks in the foundation of the law of armed conflict and, as a result, in U.S. domestic law as well. The problem arises because terrorism, even on the scale of the 9-11 attacks, can either be treated as a criminal matter to be handled by civilian courts, or an armed attack warranting response under the law of armed conflict. Prior to 9-11, the United States treated terrorism, including that sponsored by al Qaeda, as a criminal matter; thus, the United States criminally prosecuted the terrorists who bombed the World Trade Center in 1993, (10) the Murrah Federal Building in Oklahoma City in 1995, (11) and the U.S. embassies in Kenya and Tanzania in 1998. (12) In contrast, Congress and the President chose to treat the 9-11 attacks as an armed attack, and Congress authorized the President to use military force against those persons responsible for the attacks. (13)

   Neither of these approaches, however, fits the 9-11 attacks perfectly. Meaningful criminal prosecution of al Qaeda terrorists would have required that the United States gain physical custody of them. At the time of the 9-11 attacks, most of the al Qaeda leadership was living in Afghanistan, sheltered by that country's Taliban leaders. The United States, like most other countries, had no diplomatic relations with the Taliban, and therefore extradition of suspected terrorists was not an option. In fact, military force may have been the only possible approach for capturing the would-be defendants. The law of armed conflict, on the other hand, does not appear to have anticipated the use of military force against nonstate actors, making it difficult to determine when to release detainees captured during such a military conflict. Thus, much of the post-9-11 debate has concerned whether the terrorist attacks constituted criminal acts to be addressed through international cooperation and the criminal justice system, or acts of war by nonstate actors to be met with military force and direct application of the laws of armed conflict, with al Qaeda substituted as the equivalent of the enemy nation-state. (14)

   What is needed in this age of military action against nonstate terrorist groups such as al Qaeda is a new subcategory of the law of armed conflict. For the purposes of American law, this new subcategory would be triggered by the appropriate invocation of military force, whether by congressional authorization or by the President's commander-in-chief power to repel sudden attacks. (15)

   In developing this new subcategory, there are several issues that, while relevant, are beyond the scope of this Article. First, this Article assumes that the detainees either have been properly accorded prisoner-of-war (POW) status or have been properly denied that status. As of this writing, the appropriate status of the detainees remains a hotly contested matter; (16) the Bush Administration contends that neither al Qaeda nor Taliban detainees are entitled to POW status, (17) but various human rights groups have argued that the Taliban detainees do qualify for such status. (18) This Article also assumes that the detainees have been properly classified as combatants, as opposed to noncombatant civilians; (19) that assumption, however, also may be a contested matter at present. (20) These assumptions are relevant because they relate to matters of status, which are not insurmountable; the United States could address these objections and still assert authority to continue indefinite detention of the detainees until "the end of the war on terrorism."

   Analysis of the potentially indefinite detention of persons in the course of the war on terrorism raises three related questions. First, has military force been properly authorized against an ascertainable group of nonstate actors? If there is no ascertainable group of nonstate actors against whom military force can be authorized, then detention cannot be justified as incident to military action. Second, is the detainee in question actually a member of that ascertainable group? In the current war on terrorism, this question asks whether a given detainee is indeed a combatant under the terms of the military force authorization. If a particular detainee is demonstrably not a combatant, then detention cannot be justified, even if military force has been properly authorized. Arguably, the Combatant Status Review Hearings established by the Department of Defense shortly after the Supreme Court issued its decision in Rasul v. Bush (21) resolve this question by providing an annual forum in which to reevaluate the combatant status of each detainee. (22) Finally, even if the individual's initial detention as a combatant was proper, is continued detention still justified? Put another way, when military force is employed against nonstate actors, particularly ones for whom there may be no equivalent to a nation-state with which to negotiate an armistice or peace treaty, is the detaining nation-state entitled to hold such prisoners for the rest of their lives? If not, when should the detaining nation-state be obligated to release the prisoners?

   The focus of this Article is on the third question. Part I provides a review of the detainees at Guantanamo Bay: who are they, why were they captured, and in what conditions are they being held? Part II contrasts criminal law with the law of armed conflict. While there is some overlap between the two areas of law (in a broad sense, both aim to protect society), they serve distinct purposes. Criminal law sets forth the substantive elements required for society to punish an individual, whereas the law of armed conflict regulates the detention of enemy soldiers. (23) Because criminal law is concerned with punishment, it sets a high bar for detention. It is too high a bar to reach many al Qaeda members, even the high-level architects of the 9-11 attacks who are in U.S. custody in undisclosed locations.

   Part III surveys a number of situations in which the Constitution permits noncriminal detention, where society is allowed to detain a person involuntarily for reasons other than proof beyond a reasonable doubt of culpable conduct. There are four such situations: pretrial detention of persons facing indictment, civil commitment of mentally ill persons, civil commitment of violent sexual predators who have completed their criminal sentences, and quarantine or isolation of persons infected with dangerous, contagious diseases.

   Part IV synthesizes common elements from the examples of...