While there has been a great deal of focus on who may be detained in the armed conflict with al-Qaeda and associated forces (the so-called war on terror), there has been relatively little consideration of how long the government may hold individuals. The Article provides a new approach to this issue. It argues that review of long-term terrorism detentions should be addressed not merely through application of the laws of war, which permit detention until the end of a conflict, but should also draw on principles rooted in criminal sentencing.
The Article makes two main points: First, criminal sentencing highlights the value of a judicial proceeding focused on the length of detention, and second, the United States should develop a detention standard that incorporates a broader range of factors about an individual, his background, and past conduct to assess whether the government should continue to hold him. This standard may be utilized whether review of continued detention takes place in a judicial or an administrative proceeding.
The Article not only seeks practical solutions to the seemingly intractable problems posed by the detention of terrorism suspects at Guantánamo Bay Naval Base. It also attempts to reframe the larger debate surrounding the war on terror by demonstrating how traditional legal concepts, such as those governing the detention of combatants, must be adapted given the nature of the armed conflict the United States is waging.