Research Topics

After the September 11, 2001, attacks on the U.S., the U.S. launched an aggressive "War on Terror" that has entailed harsh treatment of detainees suspected of terrorism or terrorist ties. U.S. and international laws regarding the treatment and trial of detainees have been repeatedly tested and altered, and in some cases unequivocally broken. As details about U.S. policies and practices have emerged in the years since the "War on Terror" was declared, the U.S.'s tactics have drawn criticism from domestic and international observers.

The controversy over the U.S. treatment of detainees began directly following September 11 when hundreds of immigrants, almost all of whom were found to be innocent of terrorist ties, were held for months in connection with the attacks. The controversy escalated when the U.S. announced that it would classify prisoners taken during the Afghanistan War as "unlawful combatants" rather than "prisoners of war," a status which accorded them fewer protections under international law governing the treatment of military captives. The majority of those detainees were held at a prison camp maintained by the U.S. military in Guantanamo Bay, Cuba.

U.S. laws and practices regarding the treatment and trial of terrorism suspects have evolved significantly since September 2001, in response to public pressure, Supreme Court rulings, and a change in presidential administrations. However, the new policies, as well as the attitudes of lawmakers about the legality and morality of the old policies, continue to inspire controversy and debate.

What rights of the detainees in its custody does the U.S. government have a responsibility to protect?

Are abusive interrogation techniques ever justifiable?

Are military tribunals a fair way to ascertain the guilt or innocence of terrorism suspects? Why or why not?

Has the prison camp at Guantanamo Bay improved U.S. national security? Has it damaged U.S. national security?

Concerns about the treatment of "War on Terror" suspects were raised as soon as the U.S. announced that it would not accord Geneva Convention protections to its prisoners at Guantanamo Bay. However, the issue did not receive wide international attention until May 2004, when a series of photographs documenting the torture of prisoners at the U.S.-operated Abu Ghraib prison in Iraq were widely published around the world. The uproar over these photos led to greater internal and external scrutiny of U.S. treatment of detainees in Iraq, Afghanistan and at Guantanamo Bay. The Bush administration's policies on the treatment of detainees also drew more attention, eliciting criticism for fostering a permissive attitude toward abusive interrogation methods and invoking a narrow definition of "torture."

Policies banning abusive interrogation methods were strengthened in the final years of the Bush administration and the first years of the administration of President Barack Obama. Some legislators and human rights advocates have called for official investigations into the harsh treatment of detainees. Questions about the legal status of evidence obtained through abuse or torture have complicated the government's attempts to try many terrorism suspects.

As the controversy about abusive interrogation methods has escalated, government secrecy and disclosure issues have played an important role in the debate.

In late 2001, Secretary of Defense Donald Rumsfeld announced that prisoners from the war in Afghanistan would be sent to the U.S. naval base at Guantanamo Bay, and the first detainees were sent there in January 2002. Rumsfeld stated that the site had been chosen so that U.S. intelligence officials could interrogate prisoners under tight security conditions. The uncertain legal status of the prisoners at the Guantanamo Bay prison camp led to a series of legal battles, some reaching the U.S. Supreme Court. And the harsh interrogation tactics employed there have drawn international criticism.

International human rights groups, domestic political leaders and the United Nations have all called for the camp's closure, and in January 2009, newly inaugurated President Barack Obama announced that he would order the prison closed within a year. That deadline was not met, and although the Obama administration has taken several steps toward the eventual closure of the Guantanamo prison, it has also faced several obstacles. Obama has announced his intention to detain dozens of suspects indefinitely without trial, and to try dozens of others in military courts, and advancing those strategies within U.S. borders may raise new constitutional questions. U.S. states have also expressed reluctance to house a prison for terrorism detainees. See below for more about the legal battles surrounding indefinite detention and military commissions.

One month after the September 11 attacks, President George W. Bush authorized the use of military tribunals to try foreign nationals accused of complicity in terrorist attacks on the U.S. The tribunals would not accord suspects the same rights enjoyed by American citizens when accused of a crime. In June 2006 the U.S. Supreme Court ruled that the existing system of military tribunals set up in the wake of September 11 violated federal and international law. In response, President Bush proposed—and Congress passed—legislation instating a tribunal system defining detainees' circumscribed interrogation and trial rights. Three detainees were tried and convicted under that system before Obama took office and ordered it suspended for review. In May 2009, Obama announced that his administration would continue to use military commissions rather than civil courts to try some detainees. He announced that some modifications to the commissions would be made with the intention of bolstering the rights of defendants.

Both the Bush and the Obama administrations have claimed the right to detain some terrorism suspects indefinitely without trial. In 2004, the Supreme Court ruled that existing laws gave detainees the right to challenge their detention in federal court, but new legislation passed by Congress in 2005 changed the law to remove that right. In 2008, the Supreme Court ruled that Guantanamo detainees had a constitutional right to challenge their detention in U.S. court that could not be infringed on by Congress. The ruling led to a stream of habeas corpus hearings before the U.S. District Court in Washington, D.C.

Most of the Guantanamo prisoners slated for indefinite detention by the Obama administration were thought to be in limbo because evidence against them had been compromised by abuse or torture, but the government considered them too dangerous to be released.

The publication of the photos revealing widespread torture at Abu Ghraib prison led to greater internal and external scrutiny of U.S. treatment of detainees at military prisons in Iraq and Afghanistan. The prison at Bagram Air Base in Afghanistan drew attention in 2009, in part because of several habeas corpus cases brought by prisoners there, but also because some observers predicted that U.S. President Barack Obama's vow to close the Guantanamo Bay prison camp by 2010 would lead the U.S. to build a similar prison system at Bagram.

In 2005, the Washington Post published information it had received that the U.S. had hidden several high-level detainees in secret CIA prisons set up around the world soon after September 11. The prisoners, some of whom were kept in secret facilities inside known prisons and detention centers, were kept in total isolation and their existence kept secret from international observers. President Bush acknowledged the practice a year later, when he announced the transfer of 14 such 'ghost' detainees to the prison camp at Guantanamo Bay. Days after his inauguration in 2009, President Obama ordered that the CIA close its secret prisons. As more information has emerged about the program, governments that seem to have hosted prisons or otherwise facilitated secret detentions have faced domestic and international criticism for their role.

Most of the "War on Terror"–related detentions on U.S. soil occurred in the first days after the September 11 attacks, as the Immigration and Naturalization Service (INS) rounded up immigrants from the Middle East. However, the most famous case of detention in the U.S. has been that of U.S. citizen Jose Padilla. His military detention at a naval brig in South Carolina for over three years was appealed to the U.S. Supreme Court, but he was eventually transferred to civilian custody and tried in civilian court.

Another program, called "extraordinary rendition," that the U.S. has employed in the "War on Terror" involves the handing over of suspects to intelligence officials in foreign countries, often those known to practice torture. The practice has been used to circumvent U.S. antitorture laws governing interrogations. The controversy around extraordinary rendition grew as details emerged about U.S. use of the practice, and the complicity of some of its European allies in executing renditions. In 2009, the Obama administration disappointed some human rights advocates by announcing that it would continue the Bush administration practice of allowing renditions.

In January 2002, then–White House Counsel Alberto Gonzales wrote a memo addressed to President Bush that called into question the pertinence of the Geneva Conventions in the new "paradigm" of the war against terrorism. The first four years of the "War on Terror" were characterized by U.S. skepticism of the applicability of international law to that conflict. After the U.S. Supreme Court struck down the existing military tribunal system for Guantanamo detainees as violating both federal and international law, the Bush administration agreed to accord Geneva Convention protections to the prisoners at Guantanamo Bay. However, the government's compliance with the Geneva Conventions in its treatment of detainees held at Guantanamo and elsewhere has continued to generate scrutiny.