TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

Detentions Outside the CriminalJustice SystemShortly after the events of 9/11, the Bush Administration began to detain suspectedterrorists at a newly constructed prison at the US Naval Base at GuantanamoBay, Cuba. It also began to hold especially dangerous suspects at socalled‘black sites,’ secret extraterritorial prisons completely cut off from accessto the US judicial system. 311During its second term, the Bush Administration closed these black sites dueto widespread public criticism from both inside the US and abroad and thelegal implications of the Supreme Court’s Hamdan ruling. Within a day of hisinauguration, President Obama promised to also close the prison at GuantanamoBay. More than a year later, however, Guantanamo Bay remains opendespite the fact that some detainees have been released.A panel created to evaluate those confined in Guantanamo concluded thatthe US can continue to hold some detainees without trial because they aretoo dangerous to be released. 312 This issue is of enormous practical import,as detaining suspected terrorists is a critical tool in the fight against Islamicextremism. In many cases, detention is seen as the only way of preventing theplanning and execution of terrorist attacks.A serious question remains: by what legal authority can the US governmentdetain individuals outside of our ordinary criminal justice system? This chapterseeks to explore this question first by laying out the law governing detentionoutside the US criminal justice system and second by describing how thislaw is applied to captured al Qaeda and Taliban members.Belfer Center for Science and International Affairs | Harvard Kennedy School111

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