Report

A Legal Framework for Detaining Terrorists: Enact a Law to End the Clash over Rights

Benjamin Wittes and Mark H. Gitenstein

U.S. policy toward detaining foreign combatants remains murky six years after the September 11 attacks. The detention debate has been playing out in the federal court system, Congress, and, more recently, in the 2008 presidential campaign. A series of executive actions by the Bush Administration to create special detention procedures and facilities, including a detention center at Guantanamo Bay Naval Base in Cuba, has prompted rebukes by the Supreme Court, which, in turn, have led so far to two rounds of legislation.

Developing rules for detaining suspected enemies engaged in unconventional warfare against the United States and its interests represent the core challenge facing American legal policy in the war on terror.

Recommendations

Specific elements of a long-term detention regime that should be supported by the next president include:

  • An impartial decision-maker in charge of making status determinations
  • Basic procedural protections for detainees, including the assistance of counsel, the ability to see and challenge a reasonable summary of the government’s evidence, and the ability to call witnesses
  • A written, public opinion explaining the basis for each status determination, and review of such determinations by federal civilian courts
  • For those deemed properly subject to detention, some form of regularized ongoing judicial review to ensure that continued detention is necessary and appropriate.

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