Ending the war on Terrorism One Terrorist at a Time: A Noncriminal Detention Model for Holding and Releasing Guantanamo Bay Detainees (Twenty-Fourth Federalist Society Student Symposium, Law and Freedom‪)‬

Several years after the September 11, 2001 terrorist attacks, the United States continues to detain as "enemy combatants" hundreds of persons captured in Afghanistan or Pakistan during the war on terrorism. (1) Many of those detainees have languished in the detention facility at the U.S. naval base at Guantanamo Bay, with no apparent prospect for release, particularly because this military conflict does not involve an enemy sovereign with whom peace can be negotiated. In addressing this problem, there are two dangers. Continuing to detain persons who are no longer threats to the United States is undesirable and is unlikely to persuade the rest of the world of our good intentions. On the other hand, releasing persons who in fact intend to commit mass violence against the United States or to rejoin the ranks of those fighting our military is also undesirable. (2) The Bush Administration has not given consistent signals about the future of the Guantanamo detainees. Early on, it seemed as if the detainees would be held indefinitely. Then-Deputy Assistant Attorney General John Yoo said forthrightly in a speech in late 2002, "Does it make sense to ever release them if you think they are going to continue to be dangerous, even though you can't convict them of a crime?" (3) The administration also suggested, drawing upon the rhetoric of the "war on terrorism," that the detainees would be released when the "war" was over. (4) In a sense, the administration's position that the detainees will be released when the war on terrorism is over is tantamount, as critics have charged, to saying that we will hold them for the rest of their lives. (5)