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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.

A legacy Obama should avoid: Allowing detentions without trials

In a Washington Post article published January 7, 2011 entitled, "A Legacy Obama Should Avoid: Allowing Detentions without Trials," Tom Malinowski writes on the topic of the proposed executive order addressing annual reconsideration of GTMO detention decisions.  Malinowski writes that there may be interest in using such an order not only to enhance the existing annual review process for the current detainee population but also to address future detention authority more generally:

"Some, however, are urging Obama to take a more fateful step: to issue an order covering not just the hard cases he inherited in Guantanamo but also allowing detention without trial of any terrorism suspect who may be apprehended in the future, even if far from a battlefield."

Malinowski is sharply critical of this prospect insofar as non-battlefield captures are concerned:

"In fact, the “impossible to prosecute but too dangerous to release” problem is the legacy of a period in 2002 and 2003 when hundreds of alleged low-ranking militants were brought to Guantanamo with no legal process. From 2004 on, the Bush administration brought only 18 terrorism suspects who were detained beyond the Iraqi and Afghan war zones into long-term U.S. custody. These men were all accused of significant involvement in terrorism and would have been excellent candidates for prosecution had the Bush administration wanted to try them. During the Obama administration, there has also been no reported case of a terrorism suspect captured or targeted abroad whom the government deemed worthy of long-term detention but who could not be prosecuted in U.S. courts.

A new system of indefinite detention without trial is therefore not needed. But if one were established, the government would always be tempted to use it."

For the full text of the article, click here

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