ABA Standing Committee Conference Report on Counterterrorism Detention Alternatives

* ABA Standing Committee on Law and National Security,  Conference Report on Counterterrorism Detention Alternatives

Available here.

From the Committee’s description of the project:

In June of this year, a group of thirty-two legal professionals, scholars, and practitioners in the field of national security law gathered for a day-long workshop titled Exploring Counterterrorism Detention Alternatives. The workshop explored current U.S. detention powers under the criminal and military models and considered potential alternative models for the administrative detention of future terrorist suspects.

The discussants considered and attempted to define, to the extent possible: (1) the classes or categories of individuals the United States has a strong national security interest in detaining; (2) the nature and scope of existing U.S. detention powers; (3) any present gaps in existing U.S. detention powers, focusing on classes of individuals identified at step (1) for which the United States currently has no lawful power to detain; and (4) the potential benefits and costs of instituting alternative detention models for suspects captured in the future.

Participants concurred on some conclusions and principles:

*             Any contemplated administrative detention regime for terrorist suspects should include criteria describing who may be detained and specifying under what circumstances and conditions a detainee will be released. Furthermore, the government should bear the burden of proving that each detention is necessary, meaning that there is no other lawful means available for achieving the government’s asserted detention interest.

*             Ideally, any administrative detention model for terrorist suspects should feature cooperation between the three branches of the U.S. government. An independent judicial body should review the detention of individual suspects actively and frequently. In addition, many discussants agreed that the government should have a rising burden of proof to justify detention as the length of detention increases over time.

It is important to mention that the materials contained within the report represent the opinions of the discussants and do not reflect the official policy of their respective agencies, private sector organizations, or the United States Government. The materials should not be construed to be those of either the American Bar Association or the Standing Committee on Law and National Security, unless adopted pursuant to the bylaws of the Association. The report is intended for educational and informational purposes only.

We hope you will look over the report and share your comments.

Sincerely yours,

Harvey Rishikof, Chair, Rishikof50@earthlink.net

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