War and Detention

Chris Jenks, Southern Methodist University, Dedman School of Law
Geoffrey S. Corn, South Texas College of Law

Abstract

War involves using military power to force an enemy into submission. It also almost always involves the capture and detention of enemy personnel. Indeed U.S. military forces have captured and detained thousands in armed conflicts in Afghanistan, Iraq and other locations of this borderless war with al-Qaida. While preventive detention of enemy captives for the duration of hostilities is unremarkable, rarely in modern history has this authority been used in relation to a conflict that seems to have no end, like the U.S. armed conflict with al-Qaida. This has strained the perception of legitimacy, and led many to condemn what they view as indefinite detention without trial or conviction. This essay provides a brief overview of the challenges stemming from detention of non-state actors during non-international armed conflict, including what law applies, the status of review of such detention and how detainees are to be treated. Ultimately U.S. detention policy reflects an attempt at balancing and minimizing risks, the risk that an enemy will be allowed to return to the fight and the possibility of unjustifiably detaining individuals who pose no genuine risk of doing so.