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Law Professor Presents Counterterrorism Detention Statute

Madeline Morris and assistants at the law school have produced a comprehensive legal framework to govern counterterrorism detention by the U.S.

Duke University Law School professor Madeline Morris and assistants at the school have produced a comprehensive legal framework to govern counterterrorism detention by the United States.

The draft statute presents a legal and procedural framework for the detention of those who would seek to perpetrate a catastrophic attack against the United States and who are not appropriate for criminal prosecution. In his May address on the future of the Guantanamo detainees, President Obama called for legislation establishing a lawful and principled system for such detentions.

Morris says the proposed statute provides the requisite legal bases and procedural framework while upholding constitutional principles, complying with the law of war, and safeguarding against erroneous detention. And, she adds, "It relies on no ad hoc rules devised specially for Guantanamo; it is applicable to the disposition of detainees currently held at Guantanamo and, equally, to other instances of counterterrorism detention elsewhere or in the future."

The proposed legislation, she says, 1) defines the narrow category of persons appropriately subject to detention; 2) delineates procedures for identifying individuals falling within that category; 3) provides a system for the appeal and periodic review of detention determinations; 4) prescribes standards of detention; and 5) specifies criteria for and conditions of release. It contains provisions for application of the law in the territorial U.S. and abroad, in theaters of war, and otherwise.

A draft of the proposed Counterterrorism Detention, Treatment, and Release Act, with an executive summary of the act, is available at http://www.law.duke.edu/fac/morris/counterterrorismact.pdf.

Morris, an expert in international criminal law and the law of war who served as chief counsel to the Office of the Chief Defense Counsel for Military Commissions from 2006 to 2008, has provided a copy of the draft legislation to executive branch agencies.

Morris says neither criminal law nor the law of war provides an adequate legal framework for the most serious forms of terrorism, which threaten catastrophic harm.

"Criminal justice is appropriate for the handling ofmost terrorism, which threatens harm short of the catastrophic," she says. "It is not, however, the appropriate mechanism for preventing the most serious forms of terrorism, which may include devastating nuclear, biological and chemical attacks, or a cumulatively catastrophic series of conventional attacks."

Some terrorists cannot be prosecuted because evidence against them was gained through torture, or because the disclosure of evidence (including classified information) required for trial would compromise national security, she says.

"For the limited range of counterterrorism cases where detention is warranted, Congress must pass legislation delineating a detention mechanism that is constitutionally sound, in compliance with the law of war, and consistent with the international obligations of the U.S.," Morris says. "The ‘Counterterrorism Detention, Treatment, and Release Act' does exactly that."

Morris says it would be "very unfortunate" if Congress fails to act and a Guantanamo-specific executive order is issued. "If we are going to pursue counterterrorism detention -- and it appears that we are -- then we need to do it properly. Congress has a responsibility to act."

Morris is the author of the forthcoming book "Terror and Integrity: Preventive Detention in the Age of Jihad" (Oxford University Press, 2009).