Rationales for Detention: Security Threats and Intelligence Value

I n the armed conflict with AI Qaeda inside and outside Afghanistan, I the US government has had to grapple with difficult legal issues concerning who can be detained. In this brief essay, I discuss whether US practices have been consistent with the law of armed conflict (LOAC). Three specific issues are considered. The first is a th reshold question: Does LOAC regulate who can be detained in a noninternational armed conflict? After cond uding that it does, I address two questions that implicate the substantive criteria for detention. First, is it lawful to detain civilians who have not directly participated in hostilities? Second, is it lawfu1 to detain individuals for a long or indefinite period for the purpose of gathering intelligence? Since September 11, the US government has adjusted its detention practices to overcome various legal defects. These three issues remain among the fundamental challenges to the detention regime. It is not obvious that LOAC regulates the substantive grounds for detention in non -international armed confli ct. Neither Common Article 3 nor Additional Protocol II explicitly addresses the subject. They contain no language expressly prohibiting arbitrary detention or unlawful confinement. Similarly, the Rome Statute for the International Criminal Court includes "unlawful confinement" in a list of