Neither the law of war nor the criminal law, alone or in combination, provides an adequate legal structure for responding to the most serious threats posed by Al Qaeda and similar groups. After identifying the limits of the criminal law and the law of war for these purposes, this article outlines a comprehensive proposal for counterterrorism prosecution and detention policy. Appended to the article is the draft Counterterrorism Detention, Treatment and Release Act. The legislation proposed: 1) defines the category of persons to be subject to detention; 2) delineates procedures for identifying individuals falling within that category; 3) provides a system for the appeal and periodic review of detention determinations; 4) prescribes standards of detention; and, 5) specifies criteria for and conditions of release. It contains provisions for application of the Act in the territorial U.S. and abroad, in theaters of hostilities, and otherwise. The draft legislation provides the requisite legal foundation and procedural framework for protection of national security while upholding constitutional principles, complying with the law of war, and safeguarding against erroneous detention. It is applicable equally to the disposition of the detainees currently at Guantanamo as to other instances of counterterrorism detention, elsewhere or in the future. The legislation proposed thus provides a mechanism for resolving the quandaries of Guantanamo in a principled manner, without the creation of ad hoc rules for special cases.
Madeline Morris et al., After Guantanamo: War, Crime, and Detention, 3 Harvard Law & Policy Review Online 1-37 (2009)