The right to challenge the lawfulness of detention: An international perspective on US detention of suspected terrorists

Abstract

The attacks on the World Trade Centre and the Pentagon on 11th September 2001 ushered in the 'War on Terrorism'; a hotly contested security paradigm in which the United States, in particular, has adopted controversial techniques in order to counter terrorism-related violence. One such technique is the protracted detention of suspected terrorists and governmental assertions that these detainees have no attendant rights to challenge the lawfulness of their detention by means of habeas corpus or adequate alternative. At every step, the United States Executive and Congress have designed laws by reference to perceived capacities in domestic law, and without reference to the deeply entrenched international standards on the right to challenge the lawfulness of detention. This article outlines and considers those international standards and argues that these standards, as applied by international law in a time of 'emergency' or other strain, would be an appropriate and effective framework on which to build a detention policy that furthered security without unnecessarily and disproportionately violating individual rights. Journal of Conflict & Security Law © Oxford University Press 2007.