A controversial practice of the U.S. government is indefinite detention: “detaining an arrested person by a national government or law enforcement agency without a trial.”1 Many people believe that if a terrorist suspect is captured, the individual should be charged and tried in a civilian court. However, when a member of a terrorist organization is detained at Guantanamo Bay, Cuba, whether or not they have committed a crime is irrelevant. Like an enemy soldier captured during a war, they can be detained indefinitely without trial.
It is not illegal to capture enemy soldiers during a war and detain them. As Edwin Meese III, former Attorney General of the United States, points out, “Under the law of armed conflict, also called the law of war, engaging the enemy includes killing or capturing the enemy. This age-old principle — detention of the enemy during wartime for the duration of hostilities — is just as applicable to al Qaeda as it was to Nazi POWs in World War II or other enemies in previous wars.”2
During World War II, captured German soldiers were held in prison camps. By the end of the war, “there were 425,000 enemy prisoners … throughout the United States.”3 Although German POWs were sometimes mistreated, holding them prisoner was legal under the 1929 Geneva Convention, and is still legal today.4 After the war, “former POWs were returned to Europe at the rate of 50,000 a month.”5 Detaining a member of a terrorist organization is equivalent to holding a German soldier in a U.S. prison camp during World War II. German soldiers were held prisoner not as punishment, but to prevent them from returning to the battlefield and killing American soldiers. Similarly, detaining captured terrorists is necessary to prevent them from killing soldiers and civilians.
A second reason why terrorists should be detained is to interrogate them. Gaining valuable intelligence from the enemy is an important strategy in preventing future terrorist attacks, and winning the war on terror. If captured terrorists stand trial and are sentenced to prison, they can no longer be interrogated.
Many people are opposed to indefinite detention because they believe terrorists should be treated the same as civilians. Instead of detention, they want a terrorist suspect to stand trial in a civilian court. The U.S. constitution prevents a civilian from being detained indefinitely. According to the Sixth Amendment, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”6 However, this right does not apply to a member of a terrorist organization.
Terrorists are engaged in an illegal war against the United States. They are not civilians; they are “enemy combatants” who do not follow the rules of war. An enemy combatant is a “captured fighter in a war who is not entitled to prisoner of war status because he … does not meet the definition of a lawful combatant as established by the Geneva Convention.”7 Whereas a civilian can only be sent to prison if they are proven guilty of a crime, a terrorist can be detained not only for their past actions, but for the threat they pose to innocent people. The right of the U.S. government to detain terrorists indefinitely was upheld in a 2004 U.S. Supreme Court Ruling. The court “recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war.”8
The danger in the US. government detaining terrorist suspects is the military may abuse its power and detain innocent people. During World War II, German soldiers who were captured and detained were easily identified by their uniforms. Given that captured terrorists wear no uniforms, there must be due process to prove that they are terrorists. According to the Fourteenth Amendment, no State can “deprive any person of life, liberty, or property, without due process of law.”9
Terrorist suspects held at Guantanamo Bay, Cuba, have due process rights.10 Additionally, in a 2008 Supreme Court ruling, they received “the constitutional privilege of habeas corpus.”11 In the U.S legal system, “a writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if the person’s imprisonment or detention is lawful.”12 The Supreme Court ruled that detainees “have the right to challenge their detentions in federal court.”13
Although terrorist suspects now have the right to habeas corpus, this does not prevent the U.S. government from detaining them indefinitely. Proving their membership (or involvement) in a terrorist organization is the only requirement for detention, and they do not need to be charged with a crime. When World War II came to an end, many Nazis stood trial for their crimes in military courts.14 Similarly, terrorist suspects held at Guantanamo Bay, Cuba, can face justice (in a civilian or military court) when the war against the terrorist organization they belong to is over.
Notes
- US Legal, s.v. “Indefinite Detention,” accessed October 24, 2017, http://definitions.uslegal.com/i/indefinite-detention/
- Edwin Meese III, “Guantanamo Bay prison is necessary,” CNN, January 11, 2012, http://www.cnn.com/2012/01/11/opinion/meese-gitmo/index.html
- Arnold P. Krammer, “German Prisoners of War,” Texas State Historical Association, accessed October 25, 2017, https://www.tshaonline.org/handbook/online/articles/qug01
- “Prisoners of war and detainees protected under international humanitarian law,” International Committee of the Red Cross, October 29, 2010, https://www.icrc.org/eng/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm
- Krammer, “German Prisoners of War, Texas State Historical Association.
- “Sixth Amendment – U.S. Constitution,” Find Law, accessed June 6, 2016, http://constitution.findlaw.com/amendment6.html
- West’s Encyclopedia of American Law, s.v. “Enemy Combatant,” accessed October 25, 2017, https://legal-dictionary.thefreedictionary.com/enemy+combatant
- “Boumediene et al. v. Bush, President of the United States, et al.,” Supreme Court of the United States, 1, https://www.law.cornell.edu/supct/pdf/06-1195P.ZS
- “Fourteenth Amendment – U.S. Constitution,” Find Law, accessed June 6, 2016, http://constitution.findlaw.com/amendment14.html
- “Boumediene et al. v. Bush,” Supreme Court of the United States, 2.
- “Boumediene et al. v. Bush,” Supreme Court of the United States, 3.
- Legal Information Institute, s.v. “Habeas Corpus,” accessed October 25, 2017, https://www.law.cornell.edu/wex/habeas_corpus
- Bill Mears, “Justices: Gitmo detainees can challenge detention in U.S. courts,” CNN, June 12, 2008, http://www.cnn.com/2008/US/06/12/scotus/index.html
- Holocost Encylopedia, s.v. “International Military Tribunal at Nuremberg,” accessed October 25, 2017, https://www.ushmm.org/wlc/en/article.php?ModuleId=10007069
Christopher John Lindsay 
Very informative post. Thanks.
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I enjoyed what you had to say and wish there were a way to make every citizen of the world read and understand it! Bravo! I don’t know if you have a military background, so please don’t take this the wrong way, we are a simple and direct lot; I never use the terms “indefinite detention” or “forever prisoner” or “forever war.” Using such descriptors usually has the effect of stopping thought. I much prefer simply explaining the law, like you did, that the Law of Land Warfare (Army FM 27-10) and the Geneva Conventions allow for even lawful combatant POW’s to be held without charge or trial “until the end of hostilities.” Since unlawful combatants are not entitled to extra legal privileges because they broke the law, they can be executed if their status is determined to be unlawful. Using the word “indefinite” is too open-ended, and I believe inaccurate. All wars come to an end, although the Global War on Terror may last generations, it will eventually end, and with it the license to detain suspected terrorists. Also, I am very careful about calling those at the U.S. military detention facility at Guantanamo Bay, Cuba, “terrorists,” or “murderers,” although I do slip up from time-to-time. Unless they are convicted or on trial, which would make them terrorists or suspected terrorists, I tend to refer to them as detainees or unlawful combatants. If a person’s status is in doubt (civilian or combatant) they are entitled to a battlefield tribunal with a conviction standard the same as that for an indictment in a U.S. federal grand jury proceeding: if it’s 51 percent more or less likely that a person did or did not do what they are accused of then they are or are not an unlawful combatant. If a person is wearing a uniform of a combatant country, carrying weapons openly and abides by the Law of War and Geneva, then their status is POW. If a person is wearing a t-shirt and shorts, but is openly carrying a loaded weapon that was recently fired in a combat zone he may or may not be an enemy combatant, and a hearing would take place. If a person is picked up along with other known or suspected Taliban or al Qaeda members and was concealing an AK-47 in his robes he would be considered an enemy. Again, great job! I enjoyed reading your very understandable and verifiable piece. Keep up the great work! Hooah!
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