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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Jack Goldsmith: Responding to Problems with Military Detention

On his Lawfare Blog, Jack Goldsmith addressed yesterday (10/14/2010), in a post entitled "Problems with Military Detention, that despite his advocacy, military detention may give rise to two problems:

The first is that the relevant war might end.  This is hard to imagine right now with al Qaeda, but less hard to imagine with the Taliban, either because, as Bobby recently discussed, U.S. operations in Afghanistan might wind down, or because the Afghan government and the Taliban might reach a peace accord.  When the relevant armed conflict ends, the justification for detention of soldiers in that war ends.  If a particular soldier remains a threat to the United States at that point, he can probably only be held if convicted of a crime at trial.  It is possible that the government could continue to detain a dangerous terrorist if it could convince a habeas court that he would re-start the relevant military conflict by re-attacking the United States if released.  It is also possible that Congress could authorize preventive detention over still-dangerous terrorists after the relevant conflict ends.  But these are long shots at best; trial or release is the likely option once the conflict ends.

The second problem is the opposite: that detention may last a very long time, and possibly forever.  Rick Pildes calls this the “specter of indefinite detention,” and argues that “[u]nless that specter is removed, no system of detention is likely sustainable.”  Pildes says there are “two options for dealing with the problem”: (1) “fixed-length terms of detention based on the seriousness and nature of the underlying acts, or the depth and seriousness of the individual’s involvement in al-Qaeda or associated terrorist organizations”; and (2) “a credible system of periodic hearings to determine whether a detainee should continue to be held” on the ground that the individual “remained so dangerous that his continued detention was a matter of national security.”  He adds that the fixed terms and periodic review approaches could be combined.  “Instead of being automatically entitled to release after a certain number of years, a detainee could instead be presumptively entitled to release,” Pildes argues.  “A hearing to assess whether he remains a threat could be held. The structure of those hearings could be tied to how strong the presumption of release ought to be.”

For the full text of Goldsmith's post, click here

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