G. INDEFINITE DETENTION
Some commentators have argued that, instead of dealing with suspected atrocity perpetrators through, for example, prosecution, the United States should detain alleged criminals indefinitely. Such a mechanism involves incarceration for an unspecified period of time without trial or even a formal charge. Proponents of this extrajudicial practice argue that such detentions serve as well as, if not better than, prosecutions when incapacitating suspects is a key objective. Indefinite detention advocates further argue that the capability of a trial to provide additional objectives—including the possibility of capital punishment, greater legitimacy in certain circles, and the cathartic and historical benefits a criminal verdict can bring—may be exaggerated.100
Because indefinite detention is not necessarily infinite detention, detainees could be released or escape. Consequently, some of the risks of this transitional justice option mirror those for other non-lethal tools. For example, a released or escaped detainee may seek to regain power and engage in criminal activity.
Since September 11, 2001, the USG has detained numerous suspected terrorists indefinitely, most notably at a military facility in Guantanamo Bay, Cuba. More than a decade later, President Obama has not followed through on his 2008 campaign promise to close the facility,101 which has held a total of 779 individuals since 2001, 149 of whom remain there as of July 2015.102
The U.S. president’s authority to impose indefinite detention, including on U.S. citizens, is grounded in two pieces of legislation: the Authorization for Use of Military Force Against Terrorists103 and the National Defense Authorization Act.104 Proponents of this practice can thus claim some basis in law for their position. Advocates also contend that indefinite detention is critical for confronting the real and growing threat of certain atrocity perpetrators, particularly terrorists, who use strategies and tools not effectively addressed through conventional legal systems.
Critics of indefinite detention claim that it violates the most basic American legal principles concerning due process enshrined in the U.S. Constitution (particularly the Bill of Rights), including the presumption of innocence and the rights to habeas corpus, a speedy trial, a jury of peers, and confrontation of witnesses. These opponents further argue that the practice is unnecessary, as the traditional American system of investigations and prosecutions has, since September 11, 2001, successfully punished criminals and prevented terrorist attacks on U.S. soil. In addition, opponents contend that the USG’s approval of the practice for U.S. citizens erodes American civil liberties and therefore indicates that terrorists are indeed succeeding in their plans to undermine freedom in the United States and abroad. Opponents further suggest that indefinite detention is counterproductive because it damages the nation’s reputation for promoting liberal democratic values, it discourages suspects held by the military from cooperating with investigations, and it serves as a recruiting symbol for antiAmerican groups.105