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Detention After the AUMF

Hot off the presses comes the Fordham Law Review‘s print issue with the papers from last September’s symposium on “Citizenship, Immigration, and National Security After 9/11.” Although the volume is chock full of important and interesting papers by Muneer Ahmad, Linda Bosniak, Jennifer Elsea, Ramzi Kassem, Andrew Kent, Peter Margulies, Peter Spiro, and Leti Volpp, I wanted to flag mine, in particular–because I suspect it’s going to piss off just about everyone.

Titled “Detention After the AUMF,” my paper argues that the “unreleasable” Guantánamo detainees are the tail wagging not only the debate over closing Guantáanamo, but the debate over repealing/replacing the AUMF, as well. To that end, the article argues that we should at least consider a compromise solution, wherein the government transfers or otherwise releases all of the detainees who have been cleared for transfer, moves all of the other detainees into the United States, and accepts a repeal of the AUMF in favor of a more specific authorization for long-term civil detention of those detainees who are too dangerous to be released, and yet who cannot be subjected to trial in civilian or military court. Moreover, the article explains, such an authorization could largely be modeled on (if not directly tied to) the long-neglected provision of the USA PATRIOT Act (section 412) that authorizes at least short-term (and, arguably, long-term) detention of non-citizen terrorism suspects detained within the United States.

To be sure, such non-military detention would raise a host of significant procedural and substantive due process concerns (since transferring the detainees to the United States would likely resolve the applicability of the Due Process Clause–in their favor). But, as the article concludes, it’s likely that, so long as the government had to demonstrate a detainee’s continuing dangerousness and a lack of any less-restrictive means of incapacitation (on a periodic–and, importantly, individualized basis), such detention might well be upheld by the current Supreme Court. If nothing else, the article hopes to provoke a conversation about the relationship between closing Guantánamo, repealing the AUMF, and reaching some kind of forward-looking solution that solves the legacy problem while repudiating the very framework in which that problem was able to arise.

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at American University Washington College of Law. Follow him on Twitter (@steve_vladeck).