Guantanamo and Beyond: Reflections on the Past, Present, and Future of Preventive Detention

University of New Hampshire Law Review, Vol. 9, pp. 183, March 2011

15 Pages Posted: 13 Aug 2012

See all articles by Kristine A. Huskey

Kristine A. Huskey

University of Arizona - James E. Rogers College of Law

Date Written: March 1, 2011

Abstract

For most of the men held at Guantánamo, January 11, 2011 marked the beginning of a decade of detention without charge or trial in stark prison conditions. Two years after President Obama’s executive order in 2009 calling for its closure, the prison camp remains open with no political will by either party to close it. Whether Guantánamo closes, however, is no longer the most significant national security detention issue, though it should close for symbolic purposes and, of course, to the men there, its closure is surely far from insignificant. The most pressing question for our democratic society is whether military preventive detention - whether at Guantánamo or elsewhere - will continue to evolve into a permanent fixture in American’s national security landscape.

This article reviews the pertinent legislation over the last several years, including the National Defense Authorization Act for 2011, that have severely restricted the executive’s ability to close Guantánamo. Importantly, it also reviews detention case law and the current administration’s policy statements and actions, which have clearly evinced the goal to retain indefinite preventive detention under the “laws of war” as a tool in the national security toolbox long after U.S. troops leave Iraq and Afghanistan. Among other factors, the pending executive order providing for parole-like review hearings of the Guantánamo detentions, the D.C. Circuit’s approach to the habeas cases, and the Maqaleh Bagram case all lead to the unavoidable conclusion that the U.S. has already institutionalized a military indefinite preventive detention regime. Such an institution is profoundly problematic when it allows the U.S. to assert the authority under the laws of war to pick up any individual anywhere in the world, who is a suspected a member of al Qaeda or 'associated forces' but is dressed as a civilian, and detain them in prison-like conditions without charge or trial until the end of a war, which has no foreseeable or verifiable end.

Keywords: Guantanamo, preventive detention, indefinite detention, National Defense Authorization Act, NDAA, Maqaleh

Suggested Citation

Huskey, Kristine Anne, Guantanamo and Beyond: Reflections on the Past, Present, and Future of Preventive Detention (March 1, 2011). University of New Hampshire Law Review, Vol. 9, pp. 183, March 2011, Available at SSRN: https://ssrn.com/abstract=2092091

Kristine Anne Huskey (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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