Following the terrorist attacks of 9/11, the United States sought to establish a framework for detaining, interrogating and possibly prosecuting persons suspected of various degrees of connection to international terrorism. There were several factors militating against reliance on a tried and true law enforcement paradigm of arrest and prosecution in federal courts. Perhaps the most significant one, as described by then Attorney General Ashcroft and other senior officials in the Department of Justice, was the felt need for a fundamental shift in approach when dealing with terrorist suspects, from prosecution to prevention of future attacks.

It was presumed that these two interests were at odds: on the one hand, preparing and trying criminal cases, and on the other hand, obtaining actionable intelligence about terrorist groups and their plans; in other words, that the application of criminal justice procedures would hamper the intelligence gathering effort. After all, ‘you have a right to remain silent and a right to an attorney’ (the so-called Miranda warnings) was not the message that the administration wanted to convey.