Guantanamo and Beyond: Dangers of Rigging the Rules


ABSTRACT Supporters of the U.S. antiterrorism policy of indefinitely imprisoning "enemy combatants" captured in the "War on Terrorism" claim that it gives the Executive needed flexibility for incapacitating potentially dangerous terrorists and interrogating them with harsh methods to uncover plans for terrorist attacks. The policy has been widely criticized from its inception, mostly on the grounds that it is illegal and immoral. Bracketing these critiques, this Article argues that this policy is ineffective. The policy impedes the government's ability to conduct the investigations necessary to prevent terrorist attacks because it fosters indiscriminate dragnets, imprisonment, and coercive interrogations of people who are not terrorists. Given that innocent people are likely to confess falsely when subjected to coercion, the policy risks proliferating false confessions and false leads that inundate and mislead investigators. Unfortunately, the U.S. government has failed to understand this link among detentions, interrogations, and investigations, and the need for reliable judicial process to sort terrorists from non-terrorists. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court ruled that prisoners had only limited rights to challenge that they were "enemy combatants," and the Bush administration used that ruling to create the Combatant Status Review Tribunal ("CSRT"). The CSRT, however, is rigged to rubberstamp the government's case. The CSRT applies a broad definition of "enemy combatant" that inevitably ensnares innocent people; applies a presumption of guilt; has no juries; disables prisoners from gathering exculpatory evidence; prohibits prisoners from having lawyers; and relies on hearsay, coerced confessions, and secret evidence to reach its judgment that a prisoner should be detained indefinitely. Also rigged are the "military commissions" created by the administration to try "enemy combatants" for terrorism and war crimes. Military commissions may rely on coerced testimony and hearsay and use soldiers for jurors. But, unlike the CSRT, military commissions can impose death sentences, which cause innocent prisoners facing what they believe is certain execution to "cooperate" by confessing or falsely accusing others. Rigged rules also undermine investigative abilities. Knowing they can win trials by simply coercing confessions and relying on hearsay, investigators may feel little need to risk their lives infiltrating terrorist groups and developing sources. Such skimping can cause investigators' skills to atrophy and prevent their building an accurate database over time. This Article argues that U.S. policymakers should forge an effective detention and interrogation policy that recognizes the link to accurate investigations and suggests some guidelines for creating a tribunal designed to reach accurate conclusions about whether a prisoner is even a terrorist at all.

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    ABSTRACT: This article is a much revised and expanded version of a working paper that I posted a year or so ago. This revised version argues that the war on terror has accelerated the development of a new criminal process and that this new process has increasingly displaced traditional methods of investigating, prosecuting, and punishing people who have engaged in conduct that is subject to criminal penalties - whether or not that conduct is considered terrorist or not. I also contend that this new process is largely consistent with constitutional norms that are changing under the same pressures that drive the development of the new criminal process. Those pressures, in turn, derive not just from specific events but also from the perception of emergency and rapid change that characterizes modern society and political life. Throughout the article, I treat the indefinite detention and trial by military commission of suspected terrorists as emblematic but not exhaustive of the new criminal process. Not only have these efforts been central to the Bush administration's anti-terror efforts, but they have also resulted in Supreme Court opinions - most recently the decision in Hamdan v. Rumsfeld - that bear on and to some degree constrain the development of the new criminal process. Despite their importance, however, these cases risk diverting attention from the ways in which the new criminal process has already expanded executive power, licensed state violence, and transformed the citizen-state relationship. My analysis is indebted to Michael Hardt and Antonio Negri's influential books, "Empire and Multitude," as well as to the pathbreaking work of Giorgio Agamben, whose "Homo Sacer" and "State of Exception" pose important challenges for liberal theory. Few U.S. legal scholars have made serious efforts to engage with this work. Nonetheless, these theorists say much that is useful about the nature and functions of law in modern states, and one of the goals of this article is to integrate their work with more familiar forms of legal analysis. Part II of the article describes executive and congressional actions in the war on terror to illustrate the ways in which anti-terror efforts have changed since 9/11. These aspects of the new criminal process provide a legal structure for implementing the idea that everything has changed. They codify a state of emergency, but the perception of emergency should not be equated with panic. Many of these new processes were carefully planned. And, although executive power has expanded, Congress has shown some willingness to second guess executive power claims and substitute its own judgment. The new criminal process is thus a deliberate, sturdy, and evolving construct for what are arguably exceptional times. The last section of part II considers the Supreme Court's response to some of these actions - a response that seeks with varying success to accommodate emergency claims with rule of law and due process values, but which in so doing also ratifies the idea of a war on terror. Part III makes a short detour by presenting a more policy oriented assessment of the strengths and weaknesses of the new criminal process as compared to traditional processes. It also suggests that the ability to choose between the two is becoming increasingly difficult. Part IV explains why that is through an examination of everyday constitutional criminal procedure doctrine, which reveals that doctrinal change has already brought us well down the road of the new criminal process. Part V concludes by discussing the relationship between the new criminal process and the idea of emergency power and suggesting that the new criminal process is simply part of a larger shift in state power and the practice of governing.
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    ABSTRACT: In the author's words: "A common plan to violate customary and treaty-based international law concerning the treatment and interrogation of so-called terrorist and enemy combatant detainees and their supporters captured during the US war in Afghanistan emerged within the Bush Administration in 2002 . . . (the plan) was approved in January 2002 and led to high-level approval and use of unlawful interrogation tactics that year and in 2003 and 2004. A major part of the plan was to deny protections under the customary laws of war and treaties that require humane treatment of all persons who are detained during an armed conflict, regardless of their status and regardless of any claimed necessity to treat human beings inhumanely. The common plan and authorizations have criminal implications, since denials of these protections are violations of the laws of war, which are war crimes." The author goes on to review the laws of war and human rights, and their applicability to events which took place during the 2001 Afghan War. The author then goes on to detail the memoranda created by the Bush administration that purported to justify the denial and abrogation of these rights. Finally, the author examines the interrogation practices and procedures implemented at Abu Ghraib and similar locations, and their significance.
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    ABSTRACT: The paper argues that torture is legally and morally wrong and operationally not effective. In analyzing the Bybee memo, the paper argues that the atmosphere created by the Bush Administration contributed to the violations of human rights in Guantanamo Bay, Abu Ghraib, Bagram and other detention centers. Furthermore the article identifies three different forms of torture: 1) interrogation based (what some refer to as the ticking bomb); 2) sadistic or evil (the events in Abu Ghraib, as an example); 3) functional (a new leader demonstrating that there is a new sheriff in town). The paper argues that while harsh interrogation are legal and may be used, torture is both illegal and immoral.


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