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The War on Terror and the Laws of WarA Military Perspective$
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Geoffrey S. Corn, James A. Schoettler, Jr., Dru Brenner-Beck, Victor M. Hansen, Dick Jackson, Eric Talbot Jensen, and Michael W. Lewis

Print publication date: 2015

Print ISBN-13: 9780199941452

Published to Oxford Scholarship Online: December 2014

DOI: 10.1093/acprof:oso/9780199941452.001.0001

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Detention of Combatants and the War on Terror

Detention of Combatants and the War on Terror

5 Detention of Combatants and the War on Terror
The War on Terror and the Laws of War

James A. Schoettler

Oxford University Press

The right of States to detain enemy combatants in armed conflict to prevent their return to the field of combat has been described by the U.S. Supreme Court as a “fundamental incident of waging war.” This chapter looks at this fundamental belligerent right of States as it has been applied by the United States in its armed conflict with al-Qaeda and other terrorist groups since the terrorist attacks of September 11, 2001. The chapter looks closely at the law applicable to the determination of a person’s status as a combatant, the U.S. government’s approach to these status determinations in the armed conflict against al-Qaeda and associated terrorist groups, the principal U.S. court decisions scrutinizing that approach, and the response of presidential administrations and Congress to those decisions, including by developing requirements for periodic review of the basis for detention at U.S. facilities in Guantanamo Bay, Cuba, and in Afghanistan.

Keywords:   detention, combatant, habeas corpus, U.S. Supreme Court, Boumediene v. Bush, Guantanamo Bay, Afghanistan, periodic review

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