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9/11 Lessons: Terrorist Detention Policy

Author: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
August 26, 2011

9/11 Lessons: Terrorist Detention Policy - 911-lessons-terrorist-detention-policy

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Part of the series "Ten Lessons Since the 9/11 Attacks," in which CFR fellows identify the top threats and responses going forward.†Read more in the series.

For a long time, Guantanamo Bay was viewed as a lawless zone in which President Barack Obama had unfettered flexibility to detain and interrogate those suspects seized abroad who were considered a terrorist threat to the United States. Now, ironically, it is the place where the president has in many ways the least flexibility. Due to his own policy commitments and pressure from his political base and foreign allies, he can't move additional detainees into Guantanamo, which now holds about 170 of them. And, due to congressional restrictions and political pressures from the other direction, he can't transfer detainees out of Guantanamo, either, including for civilian criminal trial. Guantanamo policy is stuck.

Guantanamo paralysis is a symptom of a more general, unresolved policy conundrum: In combating twenty-first-century terrorism threats, what should be the legal processes and standards used by the U.S. government to capture, detain, and interrogate suspects? Many, including Guantanamo's strongest opponents, argue that terrorist suspects captured away from what would traditionally be considered a battlefield should only be detained in the U.S. civilian criminal justice system. Others, including those who want to keep Guantanamo open, argue that most terrorist suspects should be denied access to the civilian criminal justice system--in some cases even if they are not captured by the military abroad but are arrested by law enforcement authorities within the United States. †

The best approach lies between those views, and despite many differences in implementation and rhetoric, both the Obama administration--and the Bush administration preceding it--have headed haltingly in that direction. Criminal prosecution of terrorism suspects is often appropriate and neither signals weakness to nor legitimates terrorists, as some critics charge. But limited use of detention powers beyond those of criminal law, and including detention based on the law of war, is also legally and strategically appropriate for some leaders or operatives fighting for al-Qaeda abroad, especially when Congress provides a strong legislative basis and detentions are regulated with robust procedural protections and opportunities to rebut the government's allegations.

An important lesson since the 9/11 attacks is that detention decisions and practices have legal, political, diplomatic, operational, and other ripple effects across many aspects of counterterrorism policy, and across U.S. foreign policy more broadly. Those concerned that the United States is too aggressive in its detention policy should beware that constraining this tool adds pressure to rely on other tools, including lethal drone strikes or proxy detention by other governments. Those concerned that the United States is not aggressive enough should beware that dogged resistance to criminal prosecution and failure to seriously address opponents' domestic and international legal concerns threatens the long-term stability of terrorist detention programs. It also undermines critically important counterterrorism partnerships with allies abroad, with whom legal disagreements can inhibit exchanges of information, prisoner transfers, and other cooperation.

Read more "Lessons Since the 9/11 Attacks."

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