By Gregory S. McNeal[*]
[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006. Part II appears today.]
II. Beyond Military Commissions: Obstacles Facing Transition to a National Security Court
Recently, the academic and policy debate has begun to move towards the establishment of a national security court. Both Presidential candidates have indicated interest in closing Guantánamo Bay and moving away from military commissions. Senator Barack Obama declared, “I will also reject a legal framework that does not work. . . . I have faith in America’s courts, and I have faith in our JAGs. As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.”[73] Senator McCain has declared that he would close Guantánamo[74] while still using military commissions for trials.[75]
Given these prominent positions, the academic and policy debate has begun to evolve.[76] Professors Neal Katyal and Jack Goldsmith proposed a National Security Court,[77] and Professor Amos Guiora did the same.[78] Andrew McCarthy identified why the current systems are inadequate.[79] Central to his analysis is the need to conduct interrogations and gather intelligence to prevent terrorist attacks, and the concomitant need to protect such information from unnecessary disclosure through the court system.[80]
Ben Wittes of the Brookings Institution set forth a detailed reform proposal.[81] He cites to multiple examples, ranging from the 1993 World Trade Center Bombing trial to the trial of Jose Padilla, noting that these were perceived successes with serious underlying flaws. Wittes suggests comprehensive reform centered on increased detention standards and a “trial regime that gives detainees enough process to satisfy the commands of the Constitution and garner international tolerance, if not quite admiration, yet at the same time facilitates the maximum number of criminal trials.”[82]
Importantly, Wittes and other reformers recognize the need for protection of intelligence and generally set forth potential mechanisms for protecting information in a national security court. Similarly, Professor Guiora proposes a system for terrorism trials which he terms a “domestic terror court” that would protect intelligence.[83]
Despite the robust nature of these proposals, obstacles exist which will prevent a transition to any of these systems. While these solutions may work for new terrorism suspects, the proposals do not readily resolve the challenge posed by the current detainees, especially the eighty who have been identified as candidates for trial by military commission.[84] If Congressional reformers decide to establish a new system, be it a national security court or abolishment of the military commissions, they will face significant obstacles during the transition period.
A. Intelligence Protection Challenge and the Nonprosecution Paradox
The current military commission system was almost entirely designed by the executive branch to meet executive concerns. The Bush Administration touted the Commissions as a central element of its counterterrorism policy.[85] To date, administration officials have identified eighty detainees they intend to subject to trial by military commission.[86] However, in the seven years since the September 11th attacks there have been no trials, one conviction by plea agreement, and only nineteen individuals charged.[87] If military commissions are truly the centerpiece of the administrations’ counterterrorism policy, what accounts for the fact that only a handful of individuals have been charged? The President’s failure to bring charges is what I term the “nonprosecution paradox,” and I contend it stems from the challenge of protecting intelligence. Proposed reforms must address this intelligence protection concern and can only endure if they provide benefits that meet or exceed those of the current system.[88] If reformers fail to garner executive support, the nonprosecution paradox will persist, and detainees will wallow without charge or will be spirited off to secret sites for unaccountable detention.
The administration argues that legal challenges to the original system delayed the charging process. However, a close analysis reveals that the President was dilatory in bringing charges against the detainees even prior to legal challenges. In fact, the President waited over two and a half years to charge the first detainees[89] in a system he created himself! Even after finally preparing charges he only charged ten detainees—a fraction of the total population, which at the time numbered more than six-hundred.[90] After the passage of the MCA the President had an opportunity to again charge a large number of detainees, but again did not bring detainees to trial.
As Part I of this Essay makes clear, the executive branch exercised a great deal of control over the development of the military commissions, exclusively writing the rules by which the trials would be conducted, without outside input, oversight, or comment. There’s little doubt that the President could have swiftly charged all eighty triable detainees and publicly showcased their alleged terrorist acts. Logic would suggest that convicting high level detainees would go a long way toward justifying the propriety of the President’s actions with regard to those detainees. The fact that the executive branch did not act swiftly when it seemed so in its favor to do so suggests that structural issues prevented it from acting.
I contend that intelligence protection largely accounts for the lack of trials. This contention is supported by the fact that executive branch concerns regarding intelligence protection in military commissions have been codified in law, yet the nonprosecution paradox persists.[91] Furthermore, I argue that the paradox will endure in any new system that allows for detention in lieu of trial because such an option affords greater protection of intelligence sources and methods.
B. Transition Obstacles Created by the Nonprosecution Paradox and Intelligence Protection Challenges
Protecting intelligence is a key feature of nearly all transnational counterterrorism prosecutions. Further, as my summary indicates, the executive branch did not swiftly bring alleged terrorists to trial despite the clear political benefit such trials would bring for the President. Reformers must remain cognizant of this nonprosecution paradox and recognize its underlying causes in order to overcome this obstacle to transition.
While national security court proponents recognize the need for a system that protects intelligence information, reformers are apt to focus prospectively. Forward looking reforms are appropriate; however, these proposed reforms fail to address the retrospective and transitional challenges presented by the eighty triable detainees. These transition problems are (1) challenges posed by speedy trial rights, security clearances, and secured facilities, (2) intelligence gathering methods and use authorities, and (3) the phenomenon of executive forum-discretion.
1. Speedy Trial Rights, Security Clearances, and Secured Facilities—Both candidates for President have supported transferring all Guantánamo detainees to the United States. If solutions to the controversy surrounding Guantánamo and military commissions were this simple, the nonprosecution paradox and intelligence protection problem detailed above would not be an issue. However, because the DoD has repeatedly identified a group of eighty whom they intend to hold in preventive detention, they have created a sui generis class of detainees who upon transfer to the United States will have a colorable claim for speedy trial rights. Such claims have immediate implications for the preparedness of the federal court system or even a national security court to handle an influx of cases. One senior Department of Justice, National Security Division official recently told me that “[w]e would lose all of those cases, not because of a lack of evidence or an inability to prove the case; we simply do not have enough security-cleared prosecutors for that many cases. I’d lose them all on speedy trial grounds.”[92]
If a court extends speedy trial rights to detainees, four factors will determine whether the right to a speedy trial has been denied: “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”[93] None of these factors is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. But, in the case of the eighty triable detainees, nearly all of these factors, augur in favor of a colorable claim to denial of speedy trial rights.
Thus, the specter of the eighty triable detainees invoking speedy trial rights, along with the fact that these cases involve sensitive intelligence information, makes it likely that no President will be able to transfer that class of detainees to the United States for immediate trials until Congress prepares the federal judiciary. Congress must allocate resources to ensure there are sufficient security cleared personnel and secure facilities prior to implementing any reform proposal.
Unfortunately for any new system, terrorism trials require a lot of resources. A necessary component of any system to replace military commissions is security cleared personnel and secure facilities which protect intelligence. Even in military commissions, prosecutors have frequently been unable to convince other agencies to allow the use of intelligence information in military commissions.[94] This inability occurs despite the fact that military commission personnel are required to obtain Top Secret/SCI clearances, a clearance that exceeds the Secret clearance held by the average member of the military.[95] Thus, despite this high clearance, attorneys were unable to obtain the necessary use authority for intelligence information, or they were able to obtain use authority only for closed proceedings that lack the perception of legitimacy of open proceedings. If military commissions’ prosecutors cannot successfully convince other government agencies to clear information for use before the current military commissions, the prospects for a transition to a reformed system are dim without specific and detailed reforms. Thus, so long as the options of detention without trial, or trial in closed session exist, those options will always trump open sessions.
The experience of the Department of Justice in Article III terrorism trials also suggests obstacles for a transition to national security courts. While a recent Human Rights First report concluded that “the criminal justice system is reasonably well-equipped to handle most international terrorism cases,”[96] the report analyzed cases individually so its conclusions are not generalizable to a scenario involving an influx of eighty detainees. Moreover, two similar reports issued by the Federal Judicial Center admit that terrorism cases present unique security challenges for the federal courts.[97] Recurring issues identified in the reports were a lack of security clearances for defense counsel impairing attorney-client communication, a lack of clearances for court staff, significant delays processing clearances, and a lack of secure facilities for reviewing classified evidence—all challenges which resulted in varied solutions which may not be duplicable across federal courts.
Article III courts, while capable of individually resolving problems posed by terrorism cases, do so on a case-by-case basis yielding different rights depending on what district the case is in. Federal districts have varied resources and facilities, which creates a disparity amongst the courts regarding how they handle intelligence information. For example, the reports show while some courts have a Sensitive Compartmented Information Facility (SCIF) for review of classified evidence, others lack a SCIF. In one case, this lack of resources required the storage of documents in another district court.[98] In another case, the judge traveled to CIA headquarters to review relevant documents.[99] One case even involved a U.S. Attorney instructing a judge not to proceed when his questioning might reveal secret evidence![100]
These examples highlight the challenges courts face when handling the intelligence information found in most terrorism cases. For military commissions, the challenge was securing permission to use classified information. In federal courts, each district possesses a tenuous ability to handle terrorism cases on a small scale, but a massive influx of terrorism cases might overwhelm this ability. Before reformers can move detainees into the federal court system, Congress must allocate funding and prioritize a system for creating security cleared personnel and facilities. If reformers create a national security court, the challenge of noncooperative agencies and the administrative challenges of federal courts would be consolidated in one jurisdiction,[101] but these problems would still need to be addressed. In transition, intelligence agencies may refuse to release the information required to successfully prosecute the eighty triable detainees.
2. Foreign Evidence and Coerced Testimony—Two
evidentiary challenges also face reformers who seek to transition away from
military commissions. These challenges
are use exceptions placed on intelligence information provided by foreign
governments, and the desire of intelligence agencies to keep secret their
intelligence gathering techniques, particularly those which relate to coercive
interrogations.
a. Foreign evidence
Intelligence agencies seek to control the dissemination of information that they have collected through classification and use procedures. When an intelligence agency shares information with an allied power it often does so by placing requirements on how the recipient will protect and use that information.[102] The most appropriate method that exists for sharing information is the concept of originator controlled information. This method ensures that intelligence labeled as such “cannot be used or disseminated without the consent of the originator.”[103]
This approach requires time consuming negotiations in order to gain the information.[104] For national security courts a problem arises when restricted foreign evidence shared by an allied power for use in detention of suspected terrorists or intelligence that was shared for use in military commissions was shared conditionally. Allied nations may refuse to allow U.S. officials to use such evidence in any other forum such as courts-martial, federal courts, or a national security court. This phenomenon of originator controlled information presents a significant yet unaddressed obstacle which may prevent a transition to a system other than military commissions. Unless a reform system has protections at least as robust as military commissions that convinces allies their information is secure, some defendants may be beyond prosecution.
b. Coerced evidence
Evidence derived from coercion also presents a challenge for reformers. Many organizations have argued that techniques such as “waterboarding” are torture per se and should result in criminal prosecutions for those responsible.[105] Many released detainees or counsel for those currently held have described even more serious forms of coercive interrogation practices.[106] As the trials of detainees are likely to reveal further details regarding the nature of the interrogation practices, many government officials have a strong interest in preventing the dissemination of or declassification of information revealing those practices.
A second factor compelling those officials to resist declassification is possible evidence of detention in secret CIA facilities prior to a detainee’s incarceration in Guantánamo.[107] Civil rights groups have alleged that many detainees were subjected to illegal interrogation practices while in those prisons.[108] Given the problem of illegal interrogation practices, some argue that the only realistic course of action is to craft restrictive plea agreements. For example, Australian citizen David Hicks pleaded guilty to the charge of providing material support to terrorism. The terms of his plea preclude him from discussing his detention with the media for a period of one year after making the agreement.[109] This type of plea agreement, critics argue, is the only possible course for an administration that wants action but is handicapped by the inadmissibility of statements obtained under coercion or fear of the potential of criminal liability.[110]
The challenges presented by foreign evidence and coerced evidence both suggest that reformers should temper their optimism regarding a clean reform of either the military commissions or indefinite detentions. The solution to both problems may require the continued use of military commissions, at least for the current eighty triable detainees, and may even suggest a need to maintain a system of administrative detention for selected individuals[111]—a conclusion that presents substantial impediments to comprehensive reform.
3. Executive Forum-Discretion—Any reform
which allows for adjudication of guilt in different forums, each with differing
procedural protections, raises serious questions of legitimacy and also
incentivizes the Executive to use “lesser” forms of justice—nonprosecution or
prosecutions by military commission. In
this section, my focus is on the incentives which compel the Executive to not
prosecute, or to prosecute in military commissions rather than Article III
courts. Understanding the reason for
these discretionary decisions will guide reformers pondering whether a new
system will actually be used by the next President.
There are two primary concerns that executive actors face when selecting a forum: protecting intelligence and ensuring trial outcomes. Executive forum-discretion is a different form of prosecutorial discretion with a different balancing inquiry from the one engaged in by courts. Where prosecutorial discretion largely deals with the charges a defendant will face, executive forum-discretion impacts the procedural protections a defendant can expect at both the pretrial and trial phase. Where balancing by Courts largely focuses on ensuring a just outcome which protects rights, the balancing engaged in by executive actors has inwardly directed objectives which value rights only to the degree they impact the Executive’s self interest.
Given the unique implications flowing from forum determinations, reformers can benefit from understanding why an executive actor chooses one trial forum over another. I contend that there are seven predictive factors that influence executive discretion; national security court reformers should be aware of at least the two most salient predictive factors: trial outcomes and protection of intelligence equities.[112] The Executive’s balancing of factors yields outcomes with direct implications for fundamental notions of due process and substantial justice. Any proposed reform is incomplete without thoroughly addressing the factors that the Executive balances.
For more than forty years judges, lawyers and scholars have become accustomed to the concept of judicial balancing. Courts however, are not the only constitutional actors engaged in such balancing. Executive actors similarly engage in balancing. In the counterterrorism context, the rights implicated in the Executive’s balancing consideration are paramount because decisions affect trial rights and thus life in the most direct sense. In this context, two of the Executive’s most powerful constitutional duties are implicated, his responsibility to “take care that the laws be faithfully executed,”[113] and with that, the responsibility to bring individuals to trial and subject them to potential punishment.
To understand my executive forum-discretion framework, it is necessary to understand several key assumptions. I begin by assuming that the Executive is a rational actor: that executive behavior based on rational ordering of policy preferences will result in deliberate and consistent conduct.[114] This assumption highlights the importance of my analytical approach: if the Executive has ordered policy preferences that govern his choices, and his choices are expected to result in deliberate and consistent conduct, some factor must contribute to the Executive’s decision to choose one trial forum over another for similarly situated defendants.
Where we observe alleged terrorists who could satisfy the jurisdictional predicate for military commissions who are instead tried in an Article III court, or vice versa, I theorize that a multitude of factors are balanced by the Executive and account for the differences in conduct. Thus, a thorough exposition of the Executive’s potential policy preferences can provide predictive guidance regarding what the Executive considers when making decisions.[115] Quite simply, this analytical approach leads me to the conclusion that, so long as a forum exists which better protects intelligence or allows for easier convictions, the Executive will choose that forum over any other.
I have categorized the factors that influence executive judgment in order of preference. Admittedly, I face two theoretical problems: first, that the post-September 11 counterterrorism playing field has been the sole purview of just one executive actor (George W. Bush) and, second, the current bimodal forum choice (Article III courts or military commissions). These problems are mitigated by my methodological approach: by focusing on the factors an executive actor must balance, my theory’s predictive utility is actor-neutral (albeit the order in which each factor is placed is actor specific). Nonetheless, to reapply the analytical approach one need only take guidance from the new executive actor’s stated policy preferences. From such observation a scholar or policy maker could rearrange a new Executive’s ordinal preferences. Additionally, while I address the factors of trial outcomes and intelligence equities in this section, bear in mind that they form just two components of the Executive’s overall policy preferences.
Consistent with the theme of this Essay, I theorize that protecting intelligence equities enjoys primary importance in the eyes of the Executive, and that trial outcomes are a close second. Since September 11, 2001, 1,562 individuals have been charged in Article III courts with terrorism-related offenses,[116] while only a handful of individuals have been charged in military commissions. The number of detainees tried in Article III courts reveals that Article III courts are adequate in most cases. The system though, is under strain. A recent NPR report indicated that while the number of counterterrorism-related FISA warrants requested by the federal government has increased, the number of counterterrorism prosecutions has decreased.[117] Reinforcing the intelligence protection principle discussed above, a former FBI official interviewed by NPR stated that once prosecutors indict a terrorism suspect, “you start rolling a public process that after a point you can no longer really control. It becomes very public what you knew about this person, and that avenue of gathering more information or creating new sources is kind of cut off.”[118] This fact, coupled with the continued use of Guantánamo suggests that the Executive perceives some value in the military commission system. Clearly, some specific factors must influence the Executive to prefer trial by military commission over trial in Article III court. Otherwise those cases would be brought in Article III courts as many others have. I argue that two benefits of military commissions explain this phenomenon.
First, military commissions provide a marginal intelligence protection benefit over Article III courts. The language of the MCA related to protecting intelligence is nearly identical to the procedures detailed in the U.C.M.J.[119] Despite these similarities, military commissions provide the intelligence protection benefit of: security cleared counsel for the parties, security cleared panel members (jurors), security cleared administrative staff, and regimented procedures for reviewing all documents offered in pleadings or field with the court. Perhaps most importantly, military commissions do not require as many disclosures as those required in Article III courts and allow for the admission of hearsay.[120] These procedures enable evidence to be admitted in a manner which protects intelligence (such as ex parte affidavits) and are also more likely to secure a conviction.
Consider the intelligence protection benefit of these procedures as compared to Article III courts. In the 1993 World Trade Center bombing case, a letter was revealed to the defense during discovery listing “200 names of people who might be alleged as unindicted co-conspirators.”[121] Six years later, that letter turned up as evidence in the trial of those who bombed embassies in Africa. Within days “the letter had found its way to Sudan and was in the hands of bin Laden (who was on the list), having been fetched for him by an al-Qaeda operative who had gotten it from one of his associates.”[122] Based on this information, bin Laden was able to determine which of his operatives had been compromised. Disclosures such as this, which are mandated in Article III courts, threaten the protection of intelligence, and also provide defendants with greater rights which may result in an acquittal. Protecting intelligence and securing convictions are considerations that weigh heavily on the mind of the Executive, who will seek to maximize both.
Congressional reformers must be aware of executive forum-discretion and limit the availability of alternative fora, especially in any transition to a national security court. Otherwise, the benefits of trial in military commissions will prove too alluring to the Executive, making any new forum underutilized.
Conclusion
Reformers must recognize that to continue trials by military commission reforms are necessary. First, the structure of the commissions must be modified to eliminate political influence. Second, military commissions require greater supervision in the promulgation and implementation of their rules.
If reformers decide to eliminate military commissions, they will face three obstacles. First, Congress must provide adequate resources to prepare for an influx of detainees to the federal courts or a national security court. Because of speedy trial challenges, these resources must be provided prior to the transfer of any detainees to the United States. Second, Congressional reformers must recognize that the transitional problem posed by the eighty triable detainees implicates the protection of foreign intelligence and intelligence collection methods. Both issues may force the Executive to avoid prosecution in a forum other than a military commission rather than risk revealing intelligence information, damaging transnational intelligence cooperation, or incurring sanctions from illegal interrogation methods. Finally, reformers must recognize that, so long as the Executive has the discretion to select which forum alleged terrorists will be tried in, and so long as one forum provides an intelligence protection or trial outcome benefit, the Executive will prefer that forum and the new forum will be underutilized.
————
73. Statement of Senator Barack Obama, The War We Need to Win, The Woodrow Wilson Int’l Ctr. for Scholars, Aug. 1, 2006, available at http://www.americanrhetoric.com/speeches/barackobamawilsoncenter.htm (link).
74. Interview of Senator John McCain, I Have a Long Record of Working Together with Our Allies, Spiegel Online Int’l, Feb. 11, 2008, http://www.spiegel.de/international/world/0,1518,534459,00.html (link).
75. Carol Rosenberg, Clinton would seek to try 9/11 plotters in established Courts, McClatchy Co., Feb. 17, 2008, http://www.mcclatchydc.com/homepage/story/27935.html (link).
76. See, e.g., Posting of Deborah N. Pearlstein to Convictions: Slate’s Blog on Legal Issues, http://www.slate.com/blogs/blogs/convictions/archive/2008/06/02/a-summer-of-security-detention.aspx (June 2, 2008, 15:25 EST) (link).
77. Jack Goldsmith & Neal Katyal, The Terrorists’ Court, N.Y. Times, July 11, 2007, at A19, available at http://www.nytimes.com/2007/07/11/opinion/11katyal.html?ex=1341806400&en=05af7338d0f0eb92&ei=5124&partner=permalink&exprod=permalink (link).
78. Amos N. Guiora, Quirin to Hamdan: Creating a Hybrid Paradigm for the Detention of Terrorists, 19 Fla. J. Int’l L. 2 (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=938202 (link).
79. Andrew C. McCarthy & Alykhan Velshi, We Need a National Security Court (unpublished White Paper submitted to American Enterprise Institute), available at http://www.defenddemocracy.org/research_topics/research_topics_show.htm?doc_id=510024 (link).
80. Id. at 10–11.
81. Gregory S. McNeal, Please the Courts, Wkly. Standard, Aug. 11, 2008, at. 44–46 (reviewing Benjamin Wittes, Law and the Long War (2008)), available at http://www.weeklystandard.com/Content/Public/Articles/000/000/015/381wksjs.asp (link).
82. Id. (quoting Benjamin Wittes, Law and the Long War (2008)).
83. See generally Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System, Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2008) (testimony of Amos Guiora), available at http://judiciary.senate.gov/testimony.cfm?id=3390&wit_id=7212 (link).
84. Press Release, Dept. of Def., Military Commission Charges Referred (Jan. 31, 2008), available at http://www.defenselink.mil/releases/release.aspx?releaseid=11655 (“Of the 275 detainees at Guantanamo, approximately 80 are expected to face trial by military commission.”) (link); see also Bill Dedman, In limbo: Cases Are Few Against Gitmo Detainees, MSNBC, Oct. 24, 2006, http://www.msnbc.msn.com/id/15361740 (link).
85. See, e.g., Press Release, White House, President Bush Signs Military Commissions Act of 2006, (Oct. 17, 2006), available at http://www.whitehouse.gov/news/releases/2006/10/20061017-1.html (President Bush stated that “[the] military commissions are lawful, they are fair, and they are necessary”) (link).
86. See Press Release, Dept. of Def., supra note 84.
87. See Carol J. Williams, Guantánamo Detainee to be Charged with War Crimes, L.A. Times, June 4, 2008, at A9, available at http://articles.latimes.com/2008/jun/04/nation/na-gitmo4 (link).
88. The advantage of the current system is detention without trial, and the option of selecting four forums for trial: Military Commissions, Courts Martial, Article III courts, and deportation with trial abroad.
89. See U.S. Dept. of Defense Home Page, Military Commission Charge Sheets, http://www.defenselink.mil/news/Nov2004/charge_sheets.html (link).
90. Press Release, U.S. Dept. of Def., Transfer of Afghani and Pakistani Detainees Complete (Mar. 15, 2004), available at http://www.defenselink.mil/releases/release.aspx?releaseid=7133 (link).
91. 10 U.S.C. § 949 (2006) (discussing procedures and methods of intelligence protection).
92. Interview with a senior Dept. of Justice, Nat’l Sec. Div. official in Cleveland Ohio (Jul. 13, 2007).
94. Telephone interview with a current military commission attorney (Mar. 17, 2008).
95. Id.
96. Richard B. Zabel & James J. Benjamin Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts 2 (2008) (white paper for Human Rights First), available at http://www.humanrightsfirst.info/pdf/080521-USLS-pursuit-justice.pdf (link).
97. Robert Timothy Reagan, Fed. Judicial Ctr., Terrorism-Related Cases: Special Case Management Challenges—Case Studies (2008) [hereinafter FJC Case Studies], available at http://www.fjc.gov/public/pdf.nsf/lookup/ts080326.pdf/$file/ts080326.pdf (link); Robert Timothy Reagan, Fed. Judicial Ctr., Terrorism-Related Cases: Special Case Management Challenges—Problems and Solutions 2008 [hereinafter FJC Problems and Solutions], available at http://www.fjc.gov/public/pdf.nsf/lookup/tsps0007.pdf/$file/tsps0007.pdf (link).
98. FJC Problems and Solutions, supra note 97, at 7–8.
99. Id. at 13–14.
100. Id. at 11.
101. Consolidation in one location presents a separate fairness challenge for geographically distant defendants.
102. Jeff A. Breinholt, Counterterrorism Cooperation and the Silver Bullet: A Game Theory Illustration 3 (June 7, 2006) (unpublished manuscript), available at http://ssrn.com/abstract=907342 (link).
103. Id. at 12.
104. Id. at 15.
105. See, e.g., Press Release, Amnesty Int’l, Amnesty Int’l Calls for Criminal Investigation Following CIA “Waterboarding” Admission (Feb. 6, 2008), available at http://www.amnesty.org/en/for-media/press-releases/usa-amnesty-international-calls-criminal-investigation-following-cia-%E2%80%98wa (link).
106. Brent Mickum, Guantánamo’s Lost Souls, guardian.co.uk, Jan. 8, 2007, http://commentisfree.guardian.co.uk/brent_mickum/2007/01/post_885.html (link).
107. David Johnston, C.I.A. Tells of Bush’s Directive on the Handling of Detainees, N.Y. Times., Nov. 15, 2006, at A14, available at http://www.nytimes.com/2006/11/15/washington/15intel.html?ref=washington (link).
108. See, e.g., Amnesty Int’l, U.S. Yemen: Secret Detention in CIA “Black Sites” (2005), available at http://www.amnesty.org/en/library/info/AMR51/177/2005 (link).
109. The Australian posted what it claims is the full transcript of David Hicks’s plea agreement on its website. Section 2(b) of the purported agreement explicitly prohibits Hicks from “communicat[ing] with the media in any way regarding the illegal conduct alleged in the charge and the specifications or about the circumstances surrounding my capture and detention as an unlawful enemy combatant for a period of one (1) year.” Hicks’s Pre-Trial Agreement (Full Transcript), Australian, March 26, 2007, http://www.theaustralian.news.com.au/story/0,20876,21486066-17281,00.html (link); see also Agence France-Presse, Terror Detainee Back in Australia, N.Y. Times, May, 2007, § 1, at 8, available at http://www.nytimes.com/2007/05/20/world/asia/20hicks.html (link).
110. Press Release, Human Rights First, Hicks Plea Illustrates Problems with Military Commissions (Mar. 30, 2007), available at http://www.humanrightsfirst.org/media/usls/2007/statement/247/index.htm (link).
111. See Posting of Benjamin Wittes to Opinio Juris, Thoughts on Detention, http://opiniojuris.org/2008/07/30/thoughts-on-detention/ (Jul. 30, 2008, 15:05 EST) (advocating for “the detention of someone who is (1) operating on behalf of and subject to the direction of any group against which Congress has authorized the use of force, (2) who is engaged in, planning, or intentionally contributing to activity that poses a danger to the United States, and (3) against whom a criminal trial is impracticable at this time) (link); Posting of Benjamin Wittes to Opinio Juris, Al-Marwallah and Standards for Detention, http://opiniojuris.org/2008/07/31/al-marwallah-and-standards-for-detention/ (Jul. 31, 2008 17:31 EST) (further elaborating on his proposed detention standards) (link). But see Posting of Marty Lederman to Opinio Juris, http://opiniojuris.org/2008/07/31/the-al-marwalah-detention-rubicon-dont-cross-it/ (Jul. 31, 2008, 16:07 EST) (arguing that dangerousness alone is not enough to justify indefinite administrative detention) (link).
112. The other factors, organized in ordinal fashion, are: internal bureaucratic politics, inter-branch conflicts, electoral politics, and diplomacy.
113. U.S. Const. art. II, § 3.
114. See Thomas S. Ulen, Rational Choice Theory in Law and Economics, in 1 Encyclopedia of Law and Economics 790, 791 (Boudwijn Bockaert & Gerrit De Geest eds., 1999), available at http://encyclo.findlaw.com/0710book.pdf (link).
115. See id. (discussing the rational decisionmaker as one without “inexplicable swings in the objects of their choices” and rational choices as ones in which the means chosen to effectuate the desired ends are “reasonably well-suited to the attainment of those goals”).
116. Trac Reports, Terrorism Enforcement: International, Domestic and Financial, available at http://trac.syr.edu/tracreports/terrorism/177/#T1 (follow the “Table 1. Terrorism Prosecutions” link, then add the number of prosecutions in the “International Terrorism” and “Domestic Terrorism” columns, which total 1,562 prosecutions on terrorism-related charges) (link).
117. Ari Shapiro, As Domestic Spying Rises, Some Prosecutions Drop, NPR Morning Edition (July 11, 2008), available at http://www.npr.org/templates/story/story.php?storyId=91968094 (link).
118. Id.
119. See Jennifer K. Elsea, Congressional Research Service Report for Congress: The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice 28–30 & 42 tbl.1 (2007) available at http://www.fas.org/sgp/crs/natsec/RL33688.pdf (discussing the treatment of “classified evidence” and providing a side by side comparison of the rules governing courts-martial and military commissions) (link).
120. Id. at 27. “The MCA allows for the admission of hearsay evidence that would not be permitted under the Manual for Courts-Martial only if the proponent of the evidence notifies the adverse party sufficiently in advance of the intention to offer the evidence, as well as the ‘particulars of the evidence (including [unclassified] information on the general circumstances under which the evidence was obtained).’” Id. (quoting 10 U.S.C. § 949a(b)(3)) (alteration in original).
121. Posting of Andrew C. McCarthy to LibertyPost.org, http://www.libertypost.org/cgi-bin/readart.cgi?ArtNum=45612%20 (Apr. 14, 2004, 23:34 EST) (proposing solutions to the “intelligence mess”) (link).
122. Id.
————
Copyright 2008 Northwestern University
Cite as: 103 Nw. U. L. Rev. Colloquy 29 (2008).
Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2008/28
(Comments)
Comments