The Power to Detain: Detention of Terrorism Suspects After 9/11

U.S. counterterrorism operations today are being carried out on an unprecedented scale. Since the attacks of September 11, 2001, a key element of these counterterrorism operations has been the detention of suspected terrorists. As of mid-2012, the United States held 168 terrorism suspects at Guantanamo Bay, Cuba, and roughly three thousand in Afghanistan. Even after transferring most of the Afghan detainees to Afghan control in September 2012, the United States arranged to maintain control over dozens of foreign detainees in Afghanistan for the indefinite future. The docket of the Court of Appeals for the District of Columbia Circuit continues to be filled with cases filed by detainees challenging detentions that, in some cases, are entering a second decade. Meanwhile, Congress and the President have repeatedly sparred over detention-related issues, including the scope of military commissions set up to try law-of-war detainees, the transfer of detainees held abroad to prisons within the United States, the propriety of prosecuting terrorism suspects in U.S. federal courts, and the unlimited detention of terrorism suspects without trial. Yet the sources of the U.S. government\u27s authority to detain suspected terrorists, and the limitations on that authority, remain ill-defined. This Article aims to fill this gap by clarifying the reach and limits of existing sources of U.S. government authority to detain suspected terrorists in the ongoing conflict with al-Qaeda and associated forces. While prior scholarship has examined pieces of the detention picture, this Article seeks to offer a more comprehensive view-examining both statutory and constitutional authority for law-of-war detention, and comparing it to detention and prosecution of terrorism suspects under domestic criminal law. In the process, the Article shows that law-of-war detention has weaknesses not often recognized by those who champion its use for terrorism suspects. In many cases, criminal law detention and prosecution of terrorism suspects is not only more consistent with U.S. legal principles and commitments, but is also likely to be more effective in battling terrorism

Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law

On May 31, 2010, in the early hours of the morning, Israeli Defense Forces boarded and occupied a flotilla of six vessels seventy-two nautical miles from the coast of Gaza. The flotilla carried food and other supplies to Gaza, which was under a naval blockade. During the incident, nine passengers were killed and several others wounded. In the aftermath, a key question that emerged was what body of law applied to the incident? Was it subject to human rights law, international humanitarian law, or some mix of the two? This same question has been at the heart of ongoing debates over the counter-terrorism operations of the United States in the wake of September 11, 2001. There was relatively little discussion of the relationship between human rights law and humanitarian law in the U.S. government before the terrorist attacks on September 11, 2001, because the issue did not often arise. On those few occasions that it did arise, the government’s position was far from consistent. In 1970, the U.S. government supported U.N. General Assembly resolutions calling for compliance with human rights obligations during armed conflicts. In 1984, however, the United States made clear its view that the Convention Against Torture—a core human rights treaty—was inapplicable during armed conflict. The United States appeared to switch positions yet again when it adopted the International Covenant on Civil and Political Rights in 1992 without adding a similar disclaimer. [..

Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law

On May 31, 2010, in the early hours of the morning, Israeli Defense Forces boarded and occupied a flotilla of six vessels seventy-two nautical miles from the coast of Gaza. The flotilla carried food and other supplies to Gaza, which was under a naval blockade. During the incident, nine passengers were killed and several others wounded. In the aftermath, a key question that emerged was what body of law applied to the incident? Was it subject to human rights law, international humanitarian law, or some mix of the two? This same question has been at the heart of ongoing debates over the counter-terrorism operations of the United States in the wake of September 11, 2001. There was relatively little discussion of the relationship between human rights law and humanitarian law in the U.S. government before the terrorist attacks on September 11, 2001, because the issue did not often arise. On those few occasions that it did arise, the government’s position was far from consistent. In 1970, the U.S. government supported U.N. General Assembly resolutions calling for compliance with human rights obligations during armed conflicts. In 1984, however, the United States made clear its view that the Convention Against Torture—a core human rights treaty—was inapplicable during armed conflict. The United States appeared to switch positions yet again when it adopted the International Covenant on Civil and Political Rights in 1992 without adding a similar disclaimer. [..

A Modern Fiduciary Theory of the Necessary \u26 Proper Clause

This Article offers a new originalist account of the Necessary and Proper Clause, with important implications for the Supreme Court’s pending decision on the constitutionality of the Affordable Care Act’s individual mandate. In United States v. Comstock, the Supreme Court recently offered a substantial rethinking of the Necessary and Proper Clause, for perhaps the first time since McCulloch v. Maryland. Underlying the Court’s Comstock decision are two puzzles. First, there is a puzzle on the surface of the opinion as to how to apply Justice Breyer’s novel five “considerations” in future cases, which this Article demonstrates has already left lower courts deeply confused, notably in the cases on the constitutionality of the Affordable Care Act. Second, Comstock brings back to the surface a deeper puzzle that has sat dormant in Necessary and Proper Clause jurisprudence from the beginning: the puzzle of what it really means for congressional legislation to be rationally related to an enumerated constitutional end. This Article seeks to solve both puzzles together by proposing a modern fiduciary theory of the Necessary and Proper Clause that provides meaning to Breyer’s considerations and clarifies the nature of a rational relation between legislated means and enumerated ends. After canvassing the range of possible readings of Comstock and its means-end fit test, the Article draws on newly uncovered history of the fiduciary and agency law roots of the Necessary and Proper Clause to argue that the means-end test that is the best reading of Comstock would ask whether Congress, in legislating, is acting as a proper fiduciary of the people of the United States, within the context of its enumerated powers. Using the Affordable Care Act as a case study, the Article demonstrates that the modern fiduciary theory brings to bear a new and valuable toolset in interpreting the Act, and ultimately makes clear that the Necessary and Proper Clause should not pose a challenge to the law’s constitutionality

The Power To Detain: Detention of Terrorism Suspects After 9/11

U.S. counterterrorism operations today are being carried out on an unprecedented scale. Since the attacks of September 11, 2001, a key element of these counterterrorism operations has been the detention of suspected terrorists. As of mid-2012, the United States held 168 terrorism suspects at Guantanamo Bay, Cuba, and roughly three thousand in Afghanistan. Even after transferring most of the Afghan detainees to Afghan control in September 2012, the United States arranged to maintain control over dozens of foreign detainees in Afghanistan for the indefinite future. The docket of the Court of Appeals for the District of Columbia Circuit continues to be filled with cases filed by detainees challenging detentions that, in some cases, are entering a second decade. Meanwhile, Congress and the President have repeatedly sparred over detention-related issues, including the scope of military commissions set up to try law-of-war detainees, the transfer of detainees held abroad to prisons within the United States, the propriety of prosecuting terrorism suspects in U.S. federal courts, and the unlimited detention of terrorism suspects without trial. Yet the sources of the U.S. government\u27s authority to detain suspected terrorists, and the limitations on that authority, remain ill-defined

The Power to Detain: Detention of Terrorism Suspects After 9/11

U.S. counterterrorism operations today are being carried out on an unprecedented scale. Since the attacks of September 11, 2001, a key element of these counterterrorism operations has been the detention of suspected terrorists. As of mid-2012, the United States held 168 terrorism suspects at Guantanamo Bay, Cuba, and roughly three thousand in Afghanistan. Even after transferring most of the Afghan detainees to Afghan control in September 2012, the United States arranged to maintain control over dozens of foreign detainees in Afghanistan for the indefinite future. The docket of the Court of Appeals for the District of Columbia Circuit continues to be filled with cases filed by detainees challenging detentions that, in some cases, are entering a second decade. Meanwhile, Congress and the President have repeatedly sparred over detention-related issues, including the scope of military commissions set up to try law-of-war detainees, the transfer of detainees held abroad to prisons within the United States, the propriety of prosecuting terrorism suspects in U.S. federal courts, and the unlimited detention of terrorism suspects without trial. Yet the sources of the U.S. government\u27s authority to detain suspected terrorists, and the limitations on that authority, remain ill-defined. This Article aims to fill this gap by clarifying the reach and limits of existing sources of U.S. government authority to detain suspected terrorists in the ongoing conflict with al-Qaeda and associated forces. While prior scholarship has examined pieces of the detention picture, this Article seeks to offer a more comprehensive view-examining both statutory and constitutional authority for law-of-war detention, and comparing it to detention and prosecution of terrorism suspects under domestic criminal law. In the process, the Article shows that law-of-war detention has weaknesses not often recognized by those who champion its use for terrorism suspects. In many cases, criminal law detention and prosecution of terrorism suspects is not only more consistent with U.S. legal principles and commitments, but is also likely to be more effective in battling terrorism

Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law

On May 31, 2010, in the early hours of the morning, Israeli Defense Forces boarded and occupied a flotilla of six vessels seventy-two nautical miles from the coast of Gaza. The flotilla carried food and other supplies to Gaza, which was under a naval blockade. During the incident, nine passengers were killed and several others wounded. In the aftermath, a key question that emerged was what body of law applied to the incident? Was it subject to human rights law, international humanitarian law, or some mix of the two? This same question has been at the heart of ongoing debates over the counter-terrorism operations of the United States in the wake of September 11, 2001. There was relatively little discussion of the relationship between human rights law and humanitarian law in the U.S. government before the terrorist attacks on September 11, 2001, because the issue did not often arise. On those few occasions that it did arise, the government\u27s position was far from consistent. In 1970, the U.S. government supported U.N. General Assembly resolutions calling for compliance with human rights obligations during armed conflicts. In 1984, however, the United States made clear its view that the Convention Against Torture-a core human rights treaty-was inapplicable during armed conflict. The United States appeared to switch positions yet again when it adopted the International Covenant on Civil and Political Rights in 1992 without adding a similar disclaimer