Jenks & Jensen: Indefinite Detention Under the Laws of War

Chris Jenks (Judge Advocate General's Corps, U.S. Army) & Eric Talbot Jensen (Fordham Univ. - Law) have posted Indefinite Detention Under the Laws of War (Stanford Law & Policy Review, forthcoming). Here's the abstract:

The recent acquittal of the first Guantanamo Bay detainee to stand trial in U.S. federal court on all but one of the 286 charges he faced stemming from the 1998 bombings of two U.S. embassies in Africa has reinvigorated the discussion on indefinite detention under the laws of war. While the issue has been raised in the past, the discussion hasn’t extended beyond stating that the law of war, or law of armed conflict (LOAC) as it is often called, provides a legal basis for detention, including detention for the duration of hostilities. In fact, the Obama Administration has made it clear that some detainees will be held indefinitely “under the laws of war” but has provided no clear guidance as to what that detention would look like.

This article seeks to extend the dialogue to substantive consideration of whether the LOAC rules on detention are sufficiently flexible and comprehensive to provide worthwhile and meaningful individual protections the United States could apply to those who are detained indefinitely.

Historical practice has generally involved detention for much shorter periods of time than many at Guantanamo have already been detained. There are some notable exceptions, however, where fighters were detained for extended periods of time, including more than twenty years in the case of Morocco. Surprisingly, considering the number of armed conflicts that have involved detention, there is no common international practice concerning long-term or indefinite detention upon which states may rely.

The question then becomes, assuming that long-term and potentially indefinite detention of unlawful enemy combatants (or unprivileged enemy belligerents) will occur as justified by the law of war, what should that detention look like? This article argues that the basic provisions and safeguards currently extant in the law of armed conflict are sufficient to satisfy an indefinite detention paradigm. Though many of these provisions are under-utilized or ineffective in the current detention framework, the current structure could be adapted to provide a LOAC detention model that accounts for a contemporary view of individual rights, protections, and privileges. Such an adapted paradigm would be completely appropriate for the indefinite detention of the 48 detainees designated by the U.S. Government to be held at Guantanamo Bay, and would provide all the safeguards and ensure the overall security necessary for that detention until the conflict is over or until the detainees no longer pose a risk.