Publication Date

Spring 5-9-2017


Helms School of Government


Government: Pre-Law


Terrorism, Habeas Corpus, Judicial


Comparative and Foreign Law | Conflict of Laws | Constitutional Law | Courts | Criminal Law | Criminal Procedure | European Law | International Law | Law and Politics | Military, War, and Peace | National Security Law | President/Executive Department | Rule of Law | Supreme Court of the United States


Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with different solutions, such as special jurisdictions and specific legislation. Now, the Trump administration must craft a new approach using the available examples.