Transcript Preventive Detention

Preventive Detention
Week 10
Dr. Marie-Helen Maras

Maras, Marie-Helen (2013). Counterterrorism. Jones &
Bartlett Learning Chapter Nine

Chesney, R., & Goldsmith, J. (2007). Terrorism and the
convergence of criminal and military detention models.
Stan. L. Rev., 60, 1079.

Waxman, M. (2009). Administrative Detention of Terrorists:
Why Detain, and Detain Whom?. Columbia Public Law
Research Paper, (08-190), 08-190.

Hannah, M. (2006). Torture and the ticking bomb: the war
on terrorism as a geographical imagination of
power/knowledge. Annals of the Association of American
Geographers, 96(3),622-640.
Incapacitation: A Form of
Counterterrorism
 The
Guantanamo Bay detention camp, also
referred to as Guantánamo or Gitmo is a
United States military prison located within
Guantanamo Bay Naval Base, which fronts on
Guantanamo Bay in Cuba, and was
established in January 2002.
Military Commissions Act 2006

The United States Military Commissions Act of 2006,also known as
HR-6166, was an Act of Congress signed by President George W.
Bush on October 17, 2006. The Act's stated purpose was "To
authorize trial by military commission for violations of the law of
war, and for other purposes."

It was drafted following the Supreme Court's decision on Hamdan
v. Rumsfeld (2006), which ruled that the Combatant Status
Review Tribunals (CSRT), as established by the United States
Department of Defense, were procedurally flawed and
unconstitutional, and did not provide protections under the
Geneva Conventions. It prohibited detainees who had been
classified as enemy combatants or were awaiting hearings on
their status from using "Habeas corpus" to petition federal courts
in challenges to their detention. All pending habeas corpus cases
at the federal district court were stayed.
Boumediene v. Bush

553 U.S. 723 (2008), was a writ of habeas corpus submission
made in a civilian court of the United States on behalf of Lakhdar
Boumediene, a naturalized citizen of Bosnia and Herzegovina,
held in military detention by the United States at the
Guantanamo Bay detention camps in Cuba.

Guantanamo Bay is not formally part of the United States, and
under the terms of the 1903 lease between the United States and
Cuba, Cuba retained ultimate sovereignty over the territory,
while the United States exercises complete jurisdiction and
control.

The case was consolidated with habeas petition Al Odah v. United
States. It challenged the legality of Boumediene's detention at
the United States Naval Station military base in Guantanamo Bay,
Cuba as well as the constitutionality of the Military Commissions
Act of 2006.

Oral arguments on the combined cases were heard by the
Supreme Court on December 5, 2007.
Boumediene v. Bush

On June 12, 2008, Justice Kennedy delivered the opinion for the
5-4 majority, holding that the prisoners had a right to the habeas
corpus under the United States Constitution and that the Military
Commissions Act of 2006 was an unconstitutional suspension of
that right.

The Court applied the Insular Cases, by the fact that the United
States, by virtue of its complete jurisdiction and control,
maintains "de facto" sovereignty over this territory, while Cuba
retained ultimate sovereignty over the territory, to hold that the
aliens detained as enemy combatants on that territory were
entitled to the writ of habeas corpus protected in Article I,
Section 9 of the U.S. Constitution.

The lower court had expressly indicated that no constitutional
rights (not merely the right to habeas) extend to the Guantanamo
detainees, rejecting petitioners' arguments, but the Supreme
Court held that fundamental rights afforded by the Constitution
extend to the Guantanamo detainees as well.
Preventive Detention

The confinement in a secure facility of a person who has not
been found guilty of a crime.

Preventive detention is a special form of imprisonment. Most
persons held in preventive detention are criminal defendants,
but state and federal laws also authorize the preventive
detention of persons who have not been accused of crimes, such
as certain mentally ill persons.

Preventive detention is a relatively recent phenomenon. Before
the 1970s the general practice in criminal courts was to set bail
for almost all criminal defendants. For defendants accused of
particularly heinous crimes, courts would set the amount of bail
so high that the defendants were unlikely to be released.
Defendants in murder cases were held in jail without bail through
the end of trial.
Preventive Detention
Preventive Detention
Week 10
Dr. Marie-Helen Maras
Can Guantanamo Bay be shut down?
Preventive Detention
Week 10
Dr. Marie-Helen Maras