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Ashley C. Pope

Abstract

Part I of this Note explores the background of both the Guantánamo detainee problem-i.e., what rights a foreign national detained at Guantánamo has-and the domestic detainee problem-i.e., what rights a foreign national detained on US soil has-that the United States may soon be facing, as well as the development of the law that has left open these legal ambiguities. Part I also discusses the applicability of international law on the issue. Part II presents the current conflict over the rights foreign detainees should have and the legality of detention on US soil, discusses the applicability of international law within the United States on the issue, and presents the two trial options for foreign detainees in the United States: the civilian criminal justice system and military commissions. Part II also discusses recent events that give a richer dimension to the debate on these issues, as well as recent proposals made by members of Congress for handling the detention and trial of foreign nationals on US soil. Part III argues that a system of military detention and trial before a military commission for foreign detainees on US soil is both legal and proper under the jurisprudence that has developed after September 11. Due to the perceived difficulties posed by trying, in US federal criminal court, a foreign national detained in the "war on terror." Part III asserts that these detainees should be placed into military custody and tried before a military commission unless a civilian criminal trial is feasible. Pending charges, judicial review of a foreign national's detention consistent with the US Supreme Court's decision in Boumediene v. Bush is arguably all that is required as long as the detainee may legally be held under the laws of war.

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