Detention as Seizure: Deriving a Constitutional Infrastructure for U.S. Detention Policy
9 Pages Posted: 9 Aug 2009 Last revised: 2 Nov 2017
Date Written: October 16, 2009
Abstract
It is perhaps surprising that, nearly eight years after the events of September 11, 2001, the United States has yet to craft a comprehensive, cohesive legal framework for dealing with the detention of suspected terrorists. Only in 2008, with the Supreme Court’s decision in Boumediene v. Bush, did detention decisions by the Executive branch become susceptible to judicial review as a constitutional matter. Still, the substantive content of detention law remains largely undefined. Though much scholarly ink has been spilled on the subject, there are no definitive answers yet. One things does seem likely, however: terrorist detention law will blend aspects of criminal, military, and even “administrative” models.
This essay does not attempt a comprehensive proposal to the problem of terrorist detention. Instead, using analogies to Fourth Amendment seizure law, it sketches a useful “constitutional infrastructure” that should undergird and guide detention decisions in the war on terrorism. To that end, the broad outlines of seizure law are reviewed, revealing three pillars of this constitutional infrastructure: reasonableness, proportionality, and judicial review. These pillars are then examined in light of the challenge of terrorist detention, and some general suggestions are offered.
Keywords: terrorism, detention, guantanamo, seizure, fourth amendment, constitution, reasonableness, proportionality, judicial review
Suggested Citation: Suggested Citation