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Detention of the Enemy During Wartime

On September 11, 2001, the United States was drawn into a new kind of war. One of the flashpoints of controversy and debate over U.S. conduct in this war is the detainment of combatants at Guantanamo Bay. As of May 2014, the United States is holding one hundred and fifty-four detainees from 21 countries at Guantanamo Bay. Despite the comparatively low number, public interest in the Guantanamo detainees is high because the principles involved are vital.

Detention of the Enemy During WartimeUnder the international law of armed conflict, or law of war, and as recognized by our Supreme Court, the United States has the authority to detain enemies who have engaged in combatant actions, including acts of belligerence, until the end of hostilities. A nation may detain captured enemy fighters, not as punishment, but to keep them from returning to the battlefield.

In the past, combatants were typically associated with countries that had organized militaries or militias that carried arms openly, wore uniforms, and complied with the laws of war. But this war is different. Those behind the September 11 attacks and other terrorist attacks on U.S. persons and soil - a group of non-state actors operating under the umbrella authority of al-Qaeda -- do not act at the behest of any state. The law of war, as applied to this new enemy, has not encountered these situations.

Nonetheless, the laws of war, are mostly capable of dealing with unlawful combatancy and armed conflict between state and non-state actors. Indeed, the law of war dealt with these scenarios in the past. First, they do apply, in all cases, to combatants; these cases are relatively clear-cut. Second, in more difficult situations, they stake out general principles and procedures that are applicable in the war on terrorism and in the detention of terrorists who have declared war on the United States and its people. Even when parts of the law of war do not apply, they are persuasive, and the United States has chosen to adhere to or surpass the requirements of the law of war even when it was under no obligation to do so.

This web site presents in one place the legal authorities under girding U.S. detention policy, from international law and the Geneva Conventions to Department of Defense directives and Army regulations and procedures, and explains how they fit together in practice as the U.S. wages the war on terrorism. Its goal is to foster and stimulate informed debate about a topic too often subject to partisan quarrelling and misinformation.

This site consists of the following sub-pages:

Armed Conflict and The Geneva Conventions
Al-Qaeda: Declarations and Acts Of War
The National and International Response To 9/11
The Legal Basis of U.S. Detention Policies
Military Commissions and Due Process
Views on Guantanamo: Those Who’ve Been
References and More Information
Heritage Foundation Research on Guantanamo Bay and Detention During Wartime

All of the information on this website is available to the public. Materials for this website were taken from, among other sources: (1) The 2006 U.S. Second Periodic Report to the United Nations Committee Against Torture regarding the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (2) the website of the International Committee of the Red Cross; (3) The official website of the Department of Defense; and (4) the official website of Joint Task Force, Guantanamo Bay, Cuba.