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

Written by  Oona Hathaway et al.

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Since the attacks of September 11, 2001, the United States has used the detention of suspected terrorists as a key element of its counterterrorism operations. Yet the sources of the U.S. government’s authority to detain suspected terrorists—and the limitations on that authority—remain ill defined. This Article fills that gap by clarifying the reach and limits of existing sources of U.S. government detention authority for counterterrorism purposes. It offers a comprehensive overview of the sources of government authority to detain terrorism suspects in law of war detention, including statutory and constitutional authority. It shows, moreover, that this authority is limited not only by its own terms but also by the law of armed conflict and human rights law. The Article then examines criminal law detention as an alternative to law of war detention for terrorism suspects. It argues that criminal law detention and prosecution of terrorism suspects can produce better predictability, legitimacy, and flexibility than law of war detention and prosecution. In most cases, therefore, suspected terrorists can and should be charged and prosecuted within the federal criminal justice system. Doing so is not only more consistent with U.S. legal principles and commitments, but is also the most promising way forward in the fight against terrorism.