Restoring the Balance Between Security and Justice, a Response

The following article is posted from the JURIST-Forum, "A National Security Court: Restoring the Balance Between Security and Justice."  

Although I very much enjoyed reading Professor Leila Nadya Sadat's recent JURIST Forum op-ed Restoring America's Rights Record, I respectfully disagree with her observations regarding an alternative legal system to try terror suspects. In particular, I was struck by her characterization of such proposals as ‘rights denial'. With respect to my own proposal nothing could be further from the truth. Quite the opposite - my proposal is predicated on a rights-based solution to a problem requiring an immediate, legal answer. Rights denial? Absolutely not. Rights ensuring? Yes. Absolute rights? No. Workable, practical and legal solution to an enormous legal and practical conundrum? Absolutely.

Let me explain.

In advocating the establishment of domestic terror courts I am seeking both a legal and practical solution to the continued detention of thousands of "post 9/11 detainees". My over-riding concern is for the rule of law and rights of detainees otherwise held, in essence, in indefinite detention. That has been the primary motivation for my proposal.

When I testified before the Senate Judiciary Committee (June, 2004) regarding my proposal I suggested that establishing a domestic terror court is the most effective way to begin trying thousands of detainees held by the United States directly or indirectly world-wide. I suggest that the term "GITMO" is misleading. Guantanamo Bay is but one detention facility; what about the detainees held in Abu Ghraib, Bagram and Camp Buco? What about detainees held elsewhere in the world either by or on behalf of the US? What about future detainees?

In other words, GITMO must be viewed as a term of art referring to thousands of detainees with an unknown number potentially held in the future. While I suggest there is no "war on terrorism" (an unfortunate and inaccurate term), active and engaged operational counter-terrorism (what has been referred to as "armed conflict short of war") will directly lead to the continued detention of thousands of individuals. That is the reality of terrorism and counterterrorism. My proposal is in response to that continued and perhaps never-ending reality.

In developing a "rights-based" alternative legal regime I recommend that "where" individuals suspected of involvement in terrorism be tried is but one piece of the puzzle. That puzzle is comprised of three legs: how and when to detainee, how to interrogate and how and where to try. Looking forward: With respect to detention-an individual can be detained only if he is "caught in the act" or if there is reliable, valid and valid intelligence information with respect to his involvement in terrorism. "Round up the usual suspect" and guilt by the association are unconstitutional. They are also enormously problematic from an operational perspective. With respect to interrogations, according to my proposal individuals detained for suspicion of involvement in terrorism will be granted Miranda rights. They will also not be subject to torture no matter what offense they are suspected of. Torture is illegal, immoral and does not lead to actionable intelligence.

As to where to try the detainees. I suggest that the military commissions are an unworkable solution. Similarly, a suggested international treaty based terror court is presently unfeasible given a fundamental disagreement by the international community to agree on a definition of terrorism. That leaves two solutions-Article III courts and domestic terror courts.

The fundamental differences between Article III courts and my proposed domestic terror court is with respect to the introduction of classified intelligence information in camera and bench, rather than jury, trials. With respect to the former, the defendant's 8th Amendment right to confront his accuser will be balanced with the State's absolute requirement to protect intelligence sources. Is this problematic? It most certainly is; of that, there is no doubt. However, it is critical to emphasize that this exception will only be implemented in those cases where the available criminal evidence is insufficient for conviction. In other words, if the prosecutor is convinced that conviction does not require intelligence information the case will be solely based on criminal evidence therefore preserving the defendant's right to confront. However, in those cases where the criminal evidence is insufficient the domestic terror court paradigm will enable introduction of classified information.

The judge, in such occurrences, will "wear" two hats-that of judge and that of defense counsel. Furthermore, the judge will proactively seek to de-classify otherwise classified information thereby enabling the defendant to cross examine his accuser. While this will not be possible in all cases, the judges "mandate" is to minimize those cases where classified information is introduced. While this is not a "perfect solution" it seeks to balance between two powerful competing interests by suggesting a workable solution.

With respect to bench, rather than jury trials I suggest that convening thousands of American citizens to sit as a "jury of peers" of suspected terrorists and expecting them to understand enormously complicated intelligence information and not be fearful of "jury intimidation" is an all but impractical solution. Not only logistically (in the words of the former President of the Israel Supreme Court, Aharon Barak, "the logistic considerations of the executive must not serve as a barrier to the freedom of the individual") but legally from the perspective of protecting the detainee-defendants rights. Bench trials-in my proposal by a re-structured FISA Court-with appeal to the US Court of Appeals would far more effectively preserve and protect the rights of the detainee than jury trials. Trial by jury of thousands of detainees will undoubtedly be inordinately slower than bench trials thereby continuing to deny the defendant basic judicial rights.

That will be the true and continuing "rights denial" Prof Sadat suggests in her commentary.

I do agree with Prof Sadat that a discussion on this topic must be held and quickly so for the existing paradigm is unworkable. The debate regarding this question must be robust and candid. It must include policy and decision makers, academics, members of the Bar, civil rights organizations and the public. The over-riding principle is respect for the rule of law with an understanding that balancing between the legitimate rights of the individual with the equally legitimate national security rights of the state is the essence of a democracy.

Cross posted on AIDP Blog.

Comments

[Howard Gilbert]

"Terrorist" is simply name calling. We send F-16s to bomb Baghdad and call it "Shock and Awe". They call it "terrorism". The attack on the US Embassies in Africa was plausibly terrorist because it targeted a civilian facility in a neutral country and caused 3000 local casualties. The attack on the USS Cole was clearly an act of war. The attack on the Pentagon would have been a clear military attack if it had been conducted according to the laws of war instead of by an act of air piracy.

"Terrorists" have traditionally been civilian criminals. Armies use terror as a military strategy, but nobody today thinks of Sherman as a terrorist because of Atlanta or LeMay because of Tokyo. If an army uses unlawful tactics, then that is a "war crime" even though the same action by civilians would be terrorism.

A captured enemy solider who meets the criteria of Article 4 of the Third Geneva Convention is an Enemy Prisoner of War (EPW). He can be held by the military for the duration of the war. Civilians in a war zone can also be detained by the military in separate civilian only camps under the Fourth Geneva Convention. They are Civilian Internees (CIs). The administration does not accept that any member of the Afghan army meets the criteria of Article 4, so by definition all detainees from that war are Civilian Internees.

Army Regulation 190-8 describes in detail the rules for both types of camps. A Civilian Internee is detained given "an interment order for imperative security reasons authenticated by a responsible commissioned officer of the United States Military specifically delegated such authority by the theater commander."

"(1) Appeals. The CI who are interned for imperative security reasons will be accorded the right to appeal the order directing their internment. Such appeals will be decided with the least possible delay by a board of officers. Appeals will be decided only on the grounds of the existence or nonexistence of imperative security reasons requiring the internment of the protected person.
(2) Periodic review. In the case where an appeal has been rejected, the board will review the case at least every 6 months, if possible, to determine whether continued internment is essential to the security of the U.S. Armed Forces."

The Army tried to follow its existing regulations. Initially everyone detained in the Afghan war was treated as a CI. When Guantanamo was created, the Army announced that it would conduct regular 6 month reviews (required for CIs but not EPWs) to determine if they still posed a security threat.

That wasn't good enough for the administration. They tried to create a new category of "unlawful enemy combatant" that selected some of the EPW rules and some of the CI rules, but left out the parts that protect both groups from abusive questioning. The solution to this problem is not to try and reclassify these detainees by some new made-up label as persons suspected of terrorism and then apply new made up rules.

If you imagine that we are fighting a civilian criminal conspiracy called al Qaeda, then this is not a real war and we have to invent some rules because neither international law nor US law is clear about armed conflict short of war against non-state actors. However, Afghanistan was a real country, and it had a real government (a non Western government without President or Parliament), and the people in al Qaeda were part of that non-Western governmental structure even though they would not have been regarded as citizens of a government organized along Western principles. The "planes operation" of 9/11 was commanded by Khalid Sheikh Muhammed who reported to Muhammed Atef who reported to Bin Laden and the Shura Council of al Qaeda who in turn got the approval of Mullah Omar and the Shura Council of the Taliban which ran the government. So if you allow for the difficulties of translating Western law into a country ruled by Afghan tribal custom and Shari'a, 9/11 and all the other attacks were ordinary acts of war (and some were war crimes). We are then enaged in an ordinary war with the government and army that formerly controlled Afghanistan and are still in the field engaged in combat even though they control less territory.

Then some of the detainees were soldiers in the enemy army and EPWs (some of whom committed war crimes), while others were civilians who became CIs (some of whom committed ordinary crimes which might include "terrorism"). You may argue which category applies to either case, but it doesn't matter.

In either case, there is no requirement under international or US domestic law to convict either an EPW or CI of a crime in order to continue detention. If you doubt that, remember that Shawqi Omar (a US citizen held as a security threat CI in Camp Cropper Iraq whose case was decided by the Supreme Court on the same day as Boumediene) was detained under an authority granted by the Security Council to the Multinational Force to detain civilians deemed to be a security threat. Yes he would eventually be turned over to the Iraqi government for criminal prosecution, but the UN Security Council did not require that when it approved such detentions.

Obviously we may feel uncomfortable about the indefinite detention of civilians based solely on a military finding of some vague security threat. That is where a proposal to (out of our own sense of justice and not mandated by either international law or the Constitution) supplement the once every 6 month security review with some sort of new Article III review must be seen as a grant of new rights.

This only makes sense if you accept that it has nothing to do with "terrorism". The enemy would not have been less dangerous if they had conducted the same attacks lawfully. If on 9/11 the 19 men had put on uniforms, stolen empty planes on the ground, and flown them into targeted buildings then the attack would not have violated international law and would have been roughly comparable to US attacks on cities using F-16s or cruse missiles. We would still want to detain dangerous enemy soldiers/civilians even after the point where the attacks stop being terrorist because they have become combat.

The decision to continue detention of a CI is in the nature of a civil and not a criminal proceeding. Of course it is preventive detention, but it is nothing new. The US detained 10,000 German citizens during WWII, and all the Axis nations detained Americans under the same laws of war. Now the US did some disgraceful things to Japanese Americans, and the Japanese treatment of Americans in the Phillipines was terrible. The Germans and Russians each killed hundreds of thousands of EPWs. The legality of detention does not excuse abuse, and abuse in the past doesn't change the legality of properly managed detention.

If a detainee is charged with a crime (ordinary or war crime) then there are rules under the Geneva Conventions and precedents and procedures to handle that. However, if you apply the long standing and well understood rules for EPWs and CIs, there is no requirement to charge or convict for crimes in order to hold someone who poses a security threat as long as combat continues during a war.

We are then free to create the type of courts you propose and create whatever rules make sense and seem to provide appropriate process. The only question before these courts is whether by a preponderance of the evidence the detainee has been shown to be a security threat that justifies detention as a CI under the Fourth Geneva Convention. Since such a court is not required under current laws, any appropriate process it provides would be legal. The need for the court is driven by the discomfort that many (including Supreme Court Justices) have expressed as temporary detention lengthens and becomes indefinite.

Return to traditional classifications and long established procedures provides legitimacy. A new court will be accepted as a more just way to ensure that individuals accused of being dangerous enemy aliens are being detained based on evidence that has been fairly evaluated by an impartial tribunal. Vague talk of "terrorism" to justify reduced protection for those accused in what is still regarded as a criminal prosecution will only undermine legitimacy and create controversy.