Detention of Terrorists in the Twenty-First Century

Abstract

O all the instruments of power that may be employed to further national interests, nonc yields collateral consequences that are more difficult to predict than the unleashing of mili tary force. And with respect to the past decade's use of that instrument, no consequence has engendered more debate, confusion or passion than U.S. detention policy. This article attempts to clarify the reasons for the controversy surrounding the policy--expJaining it primarily as a function of the nature of twenty-fiest-century warfare, as opposed to competing political or ideological perspectives, as many claim. It then proffers a vision fo r moving past the controversy. At firs t, few recognized the juridical stressors associated with a twenty-firstcentury armed conflict steeped in terrorism; most simply looked to old laws to address this new type of conilict. In this context a rift began to form and grew ever wider with the years of conflict.] Today, even many nations willing to share with the United States the burdens of armed conilict have expressed significant discomfort with U.S. JegaJ endeavors related to detention.2 This dissonance and the