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Article Excerpt
I. INTRODUCTION
A. OVERVIEW
Why are U.S. officials imprisoning and interrogating people about terrorism who are unlikely to know anything about terrorism? Why have U.S. officials created an entirely new justice system, which is now in effect at the prison for "enemy combatants" at the U.S. Naval Base at Guantanamo Bay, Cuba, rigged to perpetuate this practice? These questions are rhetorical, to point out what at bottom is occurring at Guantanamo. (1) This Article will show that this new justice system (2) does not work to reduce the risk of terrorist attacks, which is presumably the purpose of Guantanamo and the "War on Terrorism." Instead, it does just the opposite.
Rigging the rules to make it easier for tribunals at Guantanamo to conclude that people are terrorists paradoxically makes it harder to investigate terrorism and capture terrorists. That is, rigging the rules in favor of the hunters actually helps the hunted avoid capture. The reason is straightforward: people commit terrorist acts. In order to prevent a terrorist attack, the people planning it must be identified and interdicted. A system that fails to identify these people fails to prevent terrorist attacks. (3)
But what have gone unrecognized are the dangers that come from undisciplined information gathering, that is, from wrongly identifying people as terrorists ("false positives"). Fundamentally, identifying the wrong people can lead investigators away from the right people and make it more likely that any actual terrorists will be able to carry out their plans. (4)
This Article directly challenges the effectiveness of the Guantanamo policy for thwarting terrorist attacks by challenging the general proposition that loosening judicial standards for detaining and convicting suspected terrorists helps prevent terrorism. Part II of the Article sets forth the necessary background showing how the rules at Guantanamo are rigged. I examine the rules of the Combatant Status Review Tribunal ("CSRT"), which purportedly provides a forum for prisoners to challenge the government's case that they are "enemy combatants" (a term that, for the purposes of this Article, I will use interchangeably with "terrorist" (5)), to show that the CSRT cannot be relied upon for accurate findings. Instead, it can be relied on only to ensure that anyone detained will remain detained. I also explain how the U.S. Supreme Court, in Hamdi v. Rumsfeld, (6) unfortunately helped lay the groundwork for the CSRT's rigged rules. I examine the rigged rules for the Administrative Review Board ("ARB"), which is set up to review annually a prisoner's dangerousness, and the rules for the military commissions, which the Bush Administration has created to make it easy to convict enemy combatants for particular war- and terrorism-crimes.
Part III is the heart of the Article. I show how these rigged rules are dangerous because they negatively impact the accuracy of terrorism investigations. The CSRT and military commissions actually foster the gathering of false confessions and other false information from suspected prisoners, which can mislead investigators. Part of the problem is the aforementioned fact that coercive interrogation techniques are applied to prisoners who lack relevant knowledge of terrorism. There are other problems as well. A system designed to help the government win its cases can lead investigators to apply less rigor than they would need to win in a regular court system. Consequently, they learn less about the terrorist networks they must disrupt.
Part IV proposes that new rules dedicated to reaching accurate determinations of terrorist status and individualized guilt for terrorist crimes be designed and implemented as a productive tool in the War on Terrorism. I make some suggestions for the form some of those rules should take.
B. BACKGROUND: WRONG DEBATE, WRONG PREMISES--NATIONAL SECURITY AND CIVIL LIBERTIES ARE NOT DICHOTOMOUS
The dangers I discuss were not exposed earlier because the debate about Guantanamo has been framed by the larger, venerable debate that sees the relationship between national security and civil liberties as dichotomous. Indeed, the U.S. Supreme Court in Hamdi consciously tipped this scale in a way it assumed would favor national security. (7)
One way of describing the logic of Guantanamo is that it reverses the longstanding view that it is better to let ninety-nine guilty men go free than it is to convict one innocent man. (8) The new thinking is to "play it safe" by casting a wide net that might, regrettably, ensnare innocent people along with legitimate terrorists. The CSRT helps ensure, however, that all of the people will remain ensnared. In this new thinking, false negatives are far more dangerous than false positives, and there is really no cost for imprisoning a false positive other than that borne by the prisoner. (9) This sentiment was expressed recently by Representative Dan Rohrabacher (RCA) during a Congressional hearing into another aspect of the U.S. detention policy, "extraordinary rendition," which entails kidnapping suspects and rendering them to foreign countries and secret prisons for the purpose of coercive interrogation: "[I]f 10 ... people suffer ... in order for us to take 90 other people off the street who are intent and involved in plans that would slaughter tens of thousands of our citizens, I'm afraid that's the price we pay in a real world." (10)
The dichotomous framing of civil liberties and national security is, I believe, why the main questions about Guantanamo until now have concerned the legality of the detentions, (11) the legality of the CSRT, (12) the legality of the military commissions, (13) and the legality and morality of torture and coercive interrogation. (14) This frame is why the dominant critiques have focused on how the policy discounts civil liberties--these critiques argue that the policy is illegal, unfair, immoral, and fails to reflect "American values" (15) by punishing innocent people and denying them any say in the matter. To a lesser extent, critiques have been based on national security considerations, suggesting that what appears to be American hypocrisy regarding justice and human rights may create a disincentive for other countries to assist the United States as the leader in the "War on Terrorism," (16) that the unfair policy can motivate enemies and be used as anti-U.S, propaganda, (17) and that other countries might use the policy to justify treating any captured U.S. soldiers similarly. (18)
But the effectiveness of the new justice system in preventing terrorist attacks has not been challenged outright. The dichotomous framing prevents such a challenge because it elides national security justifications with effectiveness. (19) (This elision is promoted by official secrecy, which makes it hard to question the effectiveness of government actions taken in the name of national security.) Indeed, a person approaching this subject for the first time might conclude either that many critics have tacitly accepted that the new system is actually effective but distasteful or that the fact that the system is ineffective is a point so obvious that it need not be made. The former is probably the more likely conclusion because ineffectiveness is the most powerful way to criticize a policy and can cut through ideological intransigence and political posturing.
In any event, the view that there is a tension between national security and civil liberties cannot withstand scrutiny, at least at Guantanamo. This view is underwritten by a set of incorrect assumptions that have not been fully articulated, beginning with the assumption that limiting civil rights can increase security by giving the government more power in what is seen as a zero-sum game. That is why the purported benefit of this new justice system is that it gives officials broad discretion and flexibility to deal with terrorism. (20) But going deeper, the assumptions are: that the Executive well knows who is and who is not a terrorist; that judicial participation would only impede the Executive in its efforts to neutralize these enemies by tying officials in bureaucratic (judicial) red tape; and that judicial interference, with its attention to procedural and evidentiary rules designed to protect defendants' rights, would risk erroneously exonerating people whom the Executive has identified as planning terrorist attacks. Such thinking is what underlies shibboleths such as "the Constitution is not a suicide pact." (21)
The Executive, however, is not all-knowing and never has been. Mistakes in identifying people as terrorists have been made in the "War on Terrorism," and at Guantanamo in particular. (22) Normal judicial procedures can help prevent such mistakes. The process at Guantanamo is meant to make it practically impossible for anyone caught in the net, by mistake or not, to get out. The need for the accuracy that courts contribute should, however, be recognized as more compelling when it comes to preventing terrorism than when it comes to convicting and punishing people for crimes that have already taken place. The danger of identifying the wrong people is greater when hundreds if not thousands of lives are at risk from terrorism, as I will show.
C. BACKGROUND: TWO ASSUMPTIONS; AND A BRACKETED QUESTION
In this Article I make two assumptions. The first is that this new justice system goes "beyond Guantanamo" as my title indicates. (23) That is, even if Guantanamo is ultimately shut down, as two pending Senate bills propose, there is no indication that such a detention policy and associated tribunals with rigged rules will not merely be implemented elsewhere. (24) Indeed, the two bills, as written, would keep the system alive in whole or in part. Moreover, it seems that demands for courts to allow easy victories against suspected terrorists may be part of a more general reaction to terrorist attacks, at least in democratic societies. (25) For example, the 9/11 attacks were not the first call for loosening judicial rules: after the 1995 Oklahoma City bombing, there were demands for "military tribunals" to try suspected terrorists without many of the traditional judicial safeguards for defendants' rights. (26)
My second assumption is one I make arguendo, which is that U.S. officials believe that the rules they have created are capable of arriving at accurate determinations of terrorist status and guilt. That is, officials do not believe that the judicial corner-cutting evident in these rules sacrifices the truth-seeking function of the tribunals. Rather, they believe that these shortcuts merely allow the use of evidence that is accurate but which would not be admissible in regular U.S. courts, which employ evidentiary and procedural rules that are, in a post-9/11 age, quaint in that they often protect the dignity of citizens (such as against coerced confessions) or honor privileges (such as the attorney-client privilege). (27) I also assume arguendo that officials rely upon the determinations of the tribunals as accurate, especially those of terrorist status by the CSRT, and use those determinations for intelligence-gathering and investigatory purposes. (28) On this view, officials are honestly misguided. I make this assumption in order to critique the government policy on its face as being unable to help prevent terrorist attacks.
But the reality is probably more complex, though no less worrying. It seems likely that officials (most of them, at least) know that rigged rules are incapable of reaching accurate conclusions, and that officials do not rely on the tribunals for truth-seeking at all. Indeed, one wonders how they could think otherwise, given the extent to which the rules are rigged. Under this view, rigging is the whole point: the rules are rigged because officials truly believe the issue of guilt has already been determined. That is, they believe that the people they have captured pose a threat of terrorism and that it is therefore necessary to guarantee that any judicial "intermeddling" be resolved in the government's favor. If this is the case, officials are still misguided because they are depriving themselves of a way to test their assumptions and expose mistakes that foster the dangers I discuss in this Article.
There is a further layer of complexity, which is the possibility that officials (or at least some of them) do not have a good faith motive, but a raw, political one. There has been powerful argument that the CSRT was created not to engage in accurate sorting of terrorists from non-terrorists but to cover up the mistaken detentions and overall brutality at Guantanamo that metastasized as a result of government overreactions after 9/11. (29)
These questions of motive are tricky, and it may be that there is a mixture of these motives among officials. Resolving this question is beyond the scope of this Article. My overall point is that the rules are rigged, and whatever the motive, rigged rules prevent the tribunals from being a useful aid--and make them downright counterproductive--to the investigations that seek to thwart terrorist attacks.
Last, in this Article, I bracket the question of whether the processes are legally permissible, and I do not focus on the rights of the men who have been imprisoned. That does not mean that I regard these things as unimportant. Instead, I take this opportunity to question the wisdom of the thinking--which often appears reflexive--among policymakers that seeks to grant only the minimal process that is believed to be due a person in these circumstances. I argue that it is important to reflect upon the problem of what process to give prisoners at Guantanamo, not from the perspective of the prisoner's rights and how much process is legally due but from the separate perspective of how legal process can serve the War on Terrorism goal of preventing terrorist attacks, and how to design legal process to serve that purpose. I hope this Article will convince readers that when it comes to judicial process and terrorism, not only is there no need to sacrifice civil liberties for security, but that sacrificing civil liberties actually threatens public safety.
II. THE RULES ARE RIGGED
The rules that are used to determine whether to detain suspected terrorists and to try them for war crimes are mere shadows--if not outright perversions--of the rules applied in U.S. criminal courts. The Guantanamo rules lack many of the traditional protections for defendants that are guaranteed by the U.S. Constitution, protections that do not simply protect the rights of defendants but that tend to produce accurate determinations by decision-makers. This Part describes the rules used by CSRT, ARB, and military commissions. It is important for the reader to bear in mind that I am not arguing that these rules are illegal because they derogate from the protections provided to criminal defendants in U.S. courts; (30) I am merely using standard U.S. criminal procedural rules as a touchstone, and of these standard rules I focus on the ones that serve the purpose, in whole or part, of achieving accurate fact-finding. (31)
A. DETENTION RULE--COMBATANT STATUS REVIEW TRIBUNALS
1. Background: The Supreme Court Defers to the Executive in Hamdi and Rasul
When the United States first brought prisoners to Guantanamo Bay from Afghanistan and other parts of the world in 2002, U.S. officials argued that no laws applied. (32) So, presumably, prisoners would not and did not receive any process, only the conclusions reached by the military upon capture. The prisoners, the Bush Administration had already argued, were not prisoners of war ("POWs") entitled to international law protections but instead were "unlawful combatants," (33) then "enemy combatants," (34) a newly invented term. (35) In response to challenges to the detentions, which the Supreme Court addressed in two cases in 2004, Hamdi v. Rumsfeld (36) and Rasul v. Bush, (37) the Bush Administration argued that Guantanamo Bay did not fall within the jurisdiction of any U.S. court (38) and the prisoners had no right to access U.S. courts to challenge their detention. (39)
In Rasul, the Court held that non-citizens regarded as enemy combatants could challenge their detentions under the federal habeas corpus statute. (40) The Court stated that it "need not address now" what procedure would be required for deciding such challenges. (41) In Hamdi, on the other hand, the Court did outline such a procedure in holding that a U.S. citizen detained as an enemy combatant could challenge the factual basis of his detention. The plurality opinion by Justice O'Connor was extremely deferential to the Executive. It concluded that citizens accused of being enemy combatants were entitled to "some process" to check that their detention was not mistaken, such as "notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." (42) The plurality stated that "interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker." (43)
Justice O'Connor went on to suggest an outline for these rules in dicta. (44) The process due could be limited because "the exigencies of the circumstances may demand that, aside from these core elements, enemy-combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." (45) Justice O'Connor wrote, "Hearsay, for example, may need to be accepted as the most reliable available evidence from the government in such a proceeding." (46) There may be a "rebuttable presumption" in favor of the government's evidence. (47)
A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. (48)
This process could be a substitute for a court's considering a petition for habeas corpus. (49) Notably, neither the plurality nor any other opinion, concurring or dissenting, suggested that, going forward, anything like a Gerstein hearing or a Federal Rule of Criminal Procedure 5.1 hearing should be used shortly after capture to test the accuracy of the detention. (50) The reason, as I will suggest in Parts III and IV, is that the Court was unaware of the link between detentions, interrogations, and accurate investigations that is the crux of this Article.
Shortly after the Supreme Court spoke, the Bush Administration followed Justice O'Connor's lead and created the CSRT, a purported substitute for habeas corpus that ostensibly would satisfy the needs and exigencies Justice O'Connor suggested. (51)
2. The CSRT Rules
The CSRT rules are rigged. As Joseph Margulies, lead counsel in Rasul v. Bush, has written, "the conclusion is simply inescapable that these tribunals were created for no other purpose than to validate a predetermined result. For years, the Administration has told the world that the prisoners at the base were 'enemy combatants,' and now a 'hearing' will come to precisely that conclusion." (52) The rules of evidence and the inability of the detainee to gather evidence or otherwise mount a defense "ensure that the particulars of any given detention remain shielded from outside scrutiny, and the prisoner remains in a black hole." (53) The CSRT does not and cannot carry out the sorting function, and because it is rigged, using it is practically the same as having no hearing at all. Also, the hearings are not required to be held early in the detention; (54) if they were (and if they were accurate), they could help prevent the multiplication of risks that ensues from mistaken detentions. (55)
The shortcomings of the CSRT can be highlighted by comparing the rules to the traditional protections afforded criminal defendants in U.S. courts, as the rest of this Part will do. (56)
a. Broad Definition of "Enemy Combatant"
The CSRT is empowered to keep in prison anybody who fits the following definition of "enemy combatant":
An "enemy combatant" for the purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or who has directly supported hostilities in aid of enemy armed forces. (57)
At its broadest, this definition would permit detention at Guantanamo for any person who merely "supported" forces "associated" with the Taliban or al Qaeda that are engaged in "hostilities" with, say, Djibouti, Pakistan, Poland, Nepal, or Qatar, which appear to be members of the "coalition," though it is unclear what the "coalition" even is. (58) Nor does the definition distinguish among detainees based on citizenship (U.S. citizens versus non-U.S. citizens), and it may well be that the CSRT process would pass constitutional muster for a citizen, as it is based on Justice O'Connor's dicta in Hamdi. In fact, counsel for the Executive branch argued in a federal district court that this definition would include:
[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities, a person who teaches English to the son of an al Qaeda member, and a journalist who knows the location of Osama Bin Laden but refuses to disclose it to protect her source. (59)
The little old lady, the English teacher, and the journalist are not terrorists, and they are not engaged in war, or even violence, against the United States or coalition nations. Nor are these hypothetical enemy combatants likely to have relevant knowledge of terrorism against the United States. Such a broad definition is contrary to the principle derived from the U.S. Constitution that crimes may not be defined so broadly that they are capable of sweeping up lots of innocent people and criminalizing what may be understood as innocent behavior. (60) I am not arguing that this definition of enemy combatant is therefore illegal; (61) I am pointing out that this broad definition is likely to cause many innocent people to be imprisoned indefinitely and interrogated, the dangers of which are discussed below.
b. Mode of Proceedings
The CSRT does not provide a trial but rather a hearing that is "non-adversarial." (62) This framework contravenes a basic premise of the U.S. legal system, which is that adversarial hearings promote truth-seeking. (63) At Guantanamo, however, the non-adversarial proceedings involve a rebuttable presumption in favor of the government's evidence that the person is an enemy combatant. (64) This standard is contrary to the adversarial standard of U.S. criminal trial rules, where no presumptions in favor of guilt (rebuttable or not) are permitted: everything must be proved. (65) The standard of proof for the CSRT is "preponderance of the evidence," (66) much weaker than the "beyond a reasonable doubt" standard in the U.S. criminal system. (67)
The tribunal members who make the ultimate determination at Guantanamo are military officers, not judges. Only one of them is required to be a trained attorney. (68) Legal training is important, however, in terms of arriving at accurate results because it develops the ability to weigh both sides of a case, to scrutinize evidence, and to consider the various ways that it can cut. Attorneys are trained to examine witnesses for bias, hidden motives, personal knowledge, perceptive abilities, memory, and logical consistency. People without legal training are less likely to question evidence in these ways. Military officers are even less likely to question evidence because they may fear that contradicting the earlier determination that a prisoner is an enemy combatant could be interpreted as disobedience. Indeed, the Uniform Code of Military Justice, which applies to regular courts martial but not to the CSRT, specifically allows a defendant to appeal if he believes the proceedings were unduly affected by "command influence." (69) There are no such grounds for appeal, however, from the CSRT. This unavoidable lack of neutrality can infect CSRT fact-finding.
The detainee is specifically prohibited from having the assistance of counsel, (70) unlike our own system, where the assistance of counsel is explicitly guaranteed by the Sixth Amendment to the U.S. Constitution. (71) Instead, the suspect is given a "Personal Representative," a military officer who "shall not be a judge advocate ... to assist the detainee in reviewing all relevant unclassified information, in preparing and presenting information, and in questioning witnesses at the CSRT." (72) On the other hand, the government's evidence is presented by the "Recorder," who is "preferably a judge advocate," i.e., a trained attorney. (73) The recorder functions not unlike a prosecutor, given that the recorder is "to obtain and present all relevant evidence to the Tribunal and to cause a record to be made of the proceedings." (74) So not only is the playing field tilted in the government's favor in that there is a presumption in favor of the government's evidence, but it is also tilted in that a lawyer presents the government's evidence against the prisoner. Also, the personal representative, who is a member of the military, may be outranked by the members of the CSRT, (75) which could subject his or her conduct to "command influence" in instances where he or she perceives or even merely believes that the CSRT members desire particular action or a particular outcome. The personal representative can also be influenced by commanders more generally in that, much like the CSRT members, the personal representative may fear questioning the overall determination that a prisoner is an enemy combatant. (76)
c. Unreliable Evidence and Lack of Cross-Examination
Protections against unreliable evidence are relaxed as well. For example, secret evidence may be used. That is, the suspect may be removed from the CSRT while the decision-makers and his personal representative hear the recorder present classified evidence against the suspect. (77) The suspect is prohibited from seeing this evidence, and the personal representative is prohibited from discussing it with him. (78) This methodology is contrary to traditional requirements of notice and opportunity to be heard, (79) and very likely the Confrontation Clause in the Sixth Amendment. (80) What is not well understood, however, is that keeping evidence secret from the suspect also threatens accuracy in that not only is the suspect barred from seeing the evidence, but the personal representative also cannot ask him to rebut or explain it--that is, to question its accuracy either factually or contextually, or to help develop questions for cross-examination. (81) Hearsay evidence also may be used if the CSRT believes it is reliable. (82) This contravenes the Federal Rules of Evidence, which prohibit hearsay except for certain categorical exceptions that have, over time, proven to be accurate. (83) Moreover, the Federal Rules do not give even Article III judges the power to make a blanket determination of reliability such as the non-lawyers on the CSRT are empowered to make. (84) Likewise, coerced testimony may be used at Guantanamo if the CSRT believes it is reliable. (85) This contravenes protections long understood as required by the U.S. Constitution. (86) Coerced confessions have long been seen as inherently unreliable (87) and, for that reason and others, (88) are never admissible in U.S. courts against a defendant. (89)
Cross examination has been recognized by the Supreme Court as the "greatest legal engine ever invented for the discovery of truth." (90) Yet the CSRT limits a prisoner's ability to cross-examine. There is no right for him to confront witnesses against him if their identity is classified or if they are "unavailable." (91) A witness might be "unavailable" because he is a soldier and his commanding officer deems that the soldier's testifying at the CSRT "will adversely affect combat or support operations," (92) an extremely broad standard that can be abused easily. Proceeding without such a witness is contrary to the Confrontation Clause (93) and can lead to inaccuracy.
A prisoner or his personal representative (if so inclined) likely would have difficulty conducting anything approaching a competent cross-examination even if there were a full opportunity to do so, given that most likely the prisoner is not an attorney, and no personal...
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