Home > JOURNALS > TWLJ > Vol. 31 > Iss. 3 (2011)
Article Title
Document Type
Comments
First Page
E. Supp. 17
Abstract
This Comment critiques the D.C. Circuit Court of Appeals’s practice of utilizing a case-by-case approach to determining whether an individual detained at the military facilities of Guantanamo Bay, Cuba is considered “part of” the Taliban or al-Qaeda. The 2010 case of Bensayah v. Obama was among the first to grant a writ of habeas corpus to a Guantanamo detainee and therefore acts as an outer boundary in determining a more concrete standard for determining who is “part of” the Taliban or al-Qaeda. In articulating such a standard, this Comment proceeds first by analyzing previous case law and examining the four indicia commonly used to determine a detainee’s status. In light of this case law, including the recent Bensayah decision, this Comment then proposes a balancing test to replace the current case-by-case method as a more reliable and predictable means of determining whether a detainee is “part of” the Taliban or al-Qaeda.
Recommended Citation
Andrew Kessel,
How to be a Terrorist Without Really Trying: A Common Law Test for Determining Who is "Part Of" a Terrorist Group,
31
B.C. Third World L.J.
E. Supp. 17
(2011),
https://lawdigitalcommons.bc.edu/twlj/vol31/iss3/2