Preventive Detention, Suspected Terrorists, and War

More documents

Recommendations

Info

GEORGETOWN UNIVERSITY Center for Transnational Legal Studies Colloquium Research Paper No. 3 May 2009 Out of the Shadows: Preventive Detention, Suspected Terrorists, and War 97 California Law Review 693 (2009) David Cole Professor of Law Georgetown Law cole@law.georgetown.edu This paper can be downloaded without charge from: SSRN: http://ssrn.com/abstract=1407652 BePress: http://lsr.nellco.org/georgetown/fwps/papers/106/ Posted with permission of the author
COLE FINAL 7/1/2009 12:43 AM Out of the Shadows: Preventive Detention, Suspected Terrorists, and War By David Cole† The United States does not have a statute authorizing preventive detention of suspected terrorists without charge. 1 Some consider that irresponsible, as it is not difficult to imagine circumstances in which the government might want to detain a suspected al Qaeda operative, but not be prepared to file charges in open court as required for a criminal prosecution. The government may have learned of the individual from a confidential or foreign-government source that it cannot publicly disclose, or from an ongoing investigation. It may lack sufficient evidence to convict beyond a reasonable doubt, but have substantial grounds to believe that the individual was actively engaged in armed conflict for al Qaeda. The disclosures necessary for a public trial might seriously compromise the military struggle against the Taliban and al Qaeda. U.S. law has no formal statutory mechanism by which the government could detain such a person. Some have suggested that this is a potentially profound defect in our national security armature. 2 Copyright © 2009 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. † Professor, Georgetown University Law Center. I would like to thank Ahilan Arulanantham, Robert Chesney, Sarah Cleveland, Anthony Dworkin, James Forman, Conor Gearty, Richard Goldstone, John Ip, Shane Kadidal, Jules Lobel, Joanne Mariner, Hope Metcalf, Eric Posner, Michael Ratner, Sir Adam Roberts, Gabor Rona, Matt Waxman, Pete Wales, and Peter Weiss for their comments on drafts of this article. I am especially indebted to my research assistant, Chris Segal, for his prodigious work on this article. Part of the article was published in a condensed version in the Boston Review. David Cole, Closing Guantánamo, Boston Rev., Jan.– Feb. 2009, available at http://bostonreview.net/BR34.1/cole.php. 1. For reviews of other nations’ preventive-detention regimes, see, for example, Law Library of Congress, Directorate of Legal Research, LL File No. 2005-01606, Preventive Detention: Australia, France, Germany, India, Israel, and the United Kingdom (2005); Preventive Detention and Security Law (Andrew Harding & John Hatcherd eds., 1993); John Ip, Comparative Perspectives on the Detention of Terrorist Suspects, 16 Transnat’l L. & Contemp. Probs. 773 (2007) (comparing the United States, United Kingdom, Canada, and New Zealand). 2. See, e.g., Jack L. Goldsmith & Neal Katyal, The Terrorists’ Court, N.Y. Times, July 11, 2007, at A19; Stephanie Cooper Blum, Preventive Detention in the War on Terror: A Comparison of How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects, 4 693
Page 1: Faculty Scholarship Georgetown Law
Page 5 and 6: COLE FINAL 7/1/2009 12:43 AM 2009]
Page 53 and 54:
COLE FINAL 7/1/2009 12:43 AM 2009]
Page 55 and 56:
COLE FINAL 7/1/2009 12:43 AM 2009]
Page 57 and 58:
COLE FINAL 7/1/2009 12:43 AM 2009]
Page 59 and 60:
COLE FINAL 7/1/2009 12:43 AM 2009]
show all

Preventive Detention, Suspected Terrorists, and War

Create successful ePaper yourself

Delete template?

Save as template?