Abrams seeks to move the discussion on Guantanamo detainees forward by bringing law-of-war detention and criminal prosecution into closer alignment. The article analyzes the Obama Administration’s current approach of dealing with terrorists captured abroad and its preference for conducting criminal prosecutions whenever feasible. Abrams proposes several changes to the current system, including a decision-making framework for imposing further military detention after completion of the criminal process, which the administration has indicated is a possibility, and taking into account the criminal culpability of the detainee to impose a presumptive limit on indefinite detention, as ways to reform the two-track system and increase equality accordingly.
By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror” …
Debate continues as to the transformations in terrorism evidenced by the September 11 attacks and since that time. Some, including the former U.S. President, point to changes in the nature of terrorism and argue that September 11 constituted a wholly new form of terrorism that demanded a novel response. Given the prior events of the World Trade Center bombing in 1993 and the East African embassy bombings in 1998, it would appear more appropriate to depict a transformation in scale and tactics rather than nature.
This article seeks to explore a third perspective. It accepts the fact that there have been transformations in terrorism, but it focuses on the actors rather than on their actions. It suggests that one’s neighbor has become a potential foe and that this trend became apparent only gradually after September 11. There are important consequences for law enforcement beyond the major adaptations already incurred. The move toward neighbor terrorism has perhaps been masked by the other more brutal changes, but it is this trend that has the potential to cause the most lasting and insidious impact on everyone’s lives.