Terrorism Due Process Brief LD Debate

LINCOLN-DOUGLAS | September/October 2012
Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens.
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TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................. 2 TOPIC ANALYSIS BY JANE KESSNER ......................................................................... 9 TOPIC ANALYSIS BY GEOFFREY KRISTOF .............................................................. 28 TOPIC ANALYSIS BY DAVE MCGINNIS ...................................................................... 36 TOPIC ANALYSIS BY FRITZ PIELSTICK ..................................................................... 48 TOPIC ANALYSIS BY LIZ SCOGGIN ........................................................................... 55 TOPIC ANALYSIS BY ADAM TORSON ........................................................................ 65 FRAMEWORK EVIDENCE ........................................................................................... 77
4 5 6
TH TH TH
AMENDMENT ..........................................................................................................................................77 AMENDMENT ..........................................................................................................................................78 AMENDMENT ..........................................................................................................................................79 AMENDMENT ........................................................................................................................................80
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TERRORISM DEFINED .................................................................................................................................81 COUNTERTERRORISM DEFINED ...............................................................................................................82 POST-9/11 SECURITY CONCERNS CHALLENGE THE FUNDAMENTAL NORMS OF LIBERAL DEMOCRACY................................................................................................................................................83 UNDER THE HYBRID PARADIGM ENEMY COMBATANTS ARE DUE CERTAIN DUE PROCESS RIGHTS .........................................................................................................................................................84 DUE PROCESS IN DETENTION PRACTICES DEFINED ............................................................................85 THE UNITED STATES HAS FAILED TO DEFINE THE DUE PROCESS RIGHTS OF SUSPECTED TERRORISTS ................................................................................................................................................86 EXTENSION OF DUE PROCESS RIGHTS TO TERRORISM INVESTIGATIONS DEPENDS ON WHETHER WE APPLY A CRIMINAL JUSTICE PARADIGM OR THE LAWS OF WAR ..................................................87 THE SUPREME COURT HAS RULED THAT THE FOURTH AMENDMENT DOES NOT EXTEND TO NONCITIZENS EXTRATERRITORIALLY, BUT THE FIFTH AND SIXTH AMENDMENTS APPLY ONCE A TRIAL BEGINS .........................................................................................................................................................88 PRISONER OF WAR STATUS TRADITIONALLY ENTAILS NON-PUNITIVE DETENTION .........................89 PRISONERS OF WAR ARE DUE CERTAIN RIGHTS AND PROTECTIONS UNDER INTERNATIONAL LAW ...............................................................................................................................................................90 TERRORISM IS DIFFICULT TO DEFINE NON-POLEMICALLY ................................................................91 THE MAJORITY OF TERRORIST ATTACKS HAVE BEEN SPONTANEOUS ONE-ON-ONE ATTACKS ....92 TERRORISTS ARE NOT CAPABLE OF CARRYING OUT EFFECTIVE ATTACKS .....................................93 AL QAEDA KILLS AS MANY PEOPLE PER YEAR WORLDWIDE AS US CITIZENS DROWN IN BATH TUBS EACH YEAR ........................................................................................................................................94 THERE PROBABLY ARENT TERRORIST ATTACKS BEING THWARTED THAT WE DONT KNOW ABOUT; IF THERE WERE, THEN WE WOULD HAVE HEARD ABOUT IT ..................................................95
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THERE IS NO WAY AL QAEDA WILL EVER ACQUIRE A NUCLEAR WEAPON ........................................96 THE LIKELIHOOD OF A US CITIZEN DYING IN A TERRORIST ATTACK IS 1 IN 35 MILLION ..................97 OUR FEARS OF TERRORISTS ARE LEADING TO OUT OF CONTROL SPENDING ................................98
AFFIRMATIVE EVIDENCE ........................................................................................... 99

PROBLEMS IN THE STATUS QUO ....................................................................................................... 99
DESPITE PROMISES OF REFORM, THE OBAMA ADMINISTRATION IS MAINTAINING MANY POST-9/11 DETENTION POLICIES .................................................................................................................................99 OTHER THAN THE WRIT OF HABEAS CORPUS, RECENT DECISIONS HAVE DENIED THAT DUE PROCESS EXTENDS TO NON-CITIZENS OUTSIDE THE UNITED STATES ...........................................100 THE OBAMA ADMINISTRATION HAS MADE LITTLE PROGRESS IN REVERSING BUSH-ERA PROGRAMS THAT COMPROMISE DUE PROCESS FOR SUSPECTED TERRORISTS .........................102 THE OBAMA ADMINISTRATION HAS ESSENTIALLY CONTINUED THE BUSH ERA ASSAULT ON CONSTITUTIONAL DUE PROCESS, WHICH UNDERMINES AMERICAN VALUES .................................103
CHECKS AND BALANCES................................................................................................................. 104

UNNUANCED DISCOURSE SURROUNDING THE WAR ON TERRORISM CAUSES CONFLICT BETWEEN COURTS AND OTHER BRANCHES OF GOVERNMENT ........................................................104 THE DENIAL OF DUE PROCESS RIGHTS TO NON-CITIZENS ACCUSED OF TERRORISM REPRESENTS A DANGEROUS DEGREE OF JUDICIAL DEFERENCE TO THE EXECUTIVE ................105 THE JUDICIARY DOES NOT OWE ABSOLUTE DEFERENCE TO CONGRESS IN MATTERS OF IMMIGRATION POLICY...............................................................................................................................106 THE UNITARY EXECUTIVE THEORY IS INCONSISTENT WITH DUE PROCESS ...................................107 DUE PROCESS CHECKS ARBITRARY EXCERCISES OF STATE POWER; IT FORCES THE STATE TO GIVE JUSTIFICATION FOR ITS ACTIONS .................................................................................................108 WITH EACH DUE PROCESS PROTECTION NOT EXTENDED, THE LESS THE POWER OF THE GOVERNMENT IS RESTRICTED ...............................................................................................................109 TERRORIST TRIALS SHOULD BE PUBLIC IN ORDER TO PROVIDE A CHECK ON GOVERNMENT POWER .......................................................................................................................................................110 PUBLIC ACCESS TO TRIALS IS GUARANTEED BY THE FIRST AMENDMENT .....................................111 NOT EXTENDING DUE PROCESS PROTECTIONS GIVES THE GOVERNMENT NEARLY UNLIMITED POWER OVER NON-CITIZEN TERRORIST SUSPECTS ..........................................................................112 THE DUE PROCESS CLAUSE APPLIES TO NON-CITIZENS ACCUSED OF TERRORISM ....................113 EXTENDING DUE PROCESS IS NECESSARY TO CHECK BACK THE EXECUTIVE BRANCH AND ENSURE A SEPARATION FO POWERS ....................................................................................................114
WAR PARADIGM VERSUS CRIMINAL JUSTICE PARADIGM ................................................................... 115

CHARACTERIZING A SUSPECT AS AN ENEMY COMBATANT RATHER THAN A CRIMINAL IS USED TO JUSTIFY DIMINISHED DUE PROCESS .....................................................................................................115 CURRENT TERRORIST DETENTION POLICIES ARE JUSTIFIED BY INVOKING A PERMANENT STATE OF EMERGENCY ........................................................................................................................................116 TREATING TERRORISM AS A MATTER OF SECURITY POLICY RATHER THAN CRIMINAL JUSTICE JUSTIFIES TERRIBLE SUFFERING ...........................................................................................................117 A MILITARY RATHER THAN LEGAL APPROACH TO TERRORISM UNDERMINES SECURITY IN THE LONG RUN ..................................................................................................................................................118 APPLICATION OF DETENTION PROCEDURES UNDER THE LAWS OF WAR IS PROBLEMATIC FOR THE WAR ON TERRORISM BECAUSE THE SCOPE OF THE BATTLEFIELD IS UNDEFINED ...............119
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DETENTION OF TERRORISM SUSPECTS IN THE WAR ON TERROR HAS A DECIDEDLY PUNIITVE CHARACTER...............................................................................................................................................120
PROCEDURAL FAIRNESS................................................................................................................. 121

SHIFTING DUE PROCESS STANDARDS FOR THOSE ACCUSED OF TERRORISM MAGNIFY THE UNFAIRNESS IN THE PROSECUTION OF NON-CITIZENS......................................................................121 THE KIYEMBA COURT UNDERMINED THE RIGHT OF ALIENS TO HABEAS CORPUS BY DENYING THEM AN APPROPRIATE REMEDY ..........................................................................................................122 THE KIYEMBA COURT WRONGLY RELIED ON IMMIGRATION LAW TO REFUSE A REMEDY FOR NONCITIZENS HABEAS PETITIONS ................................................................................................................123 THE ABSENCE OF A WORKABLE LEGAL FRAMEWORK FOR DETAINING SUSPECTED TERRORISTS UNDER THE LAWS OF WAR INCREASES THE LIKELIHOOD OF WRONGFUL DETENTION ................124 THE ABSENCE OF CLEARLY DEFINED TEMPORAL BOUNDARIES FOR THE WAR AGAINST TERRORISM MAKE LAW OF WAR DETENTIONS DIFFICULT TO MANAGE WITHIN THE EXISTING LEGAL FRAMEWORK .................................................................................................................................125 THOUSANDS HAVE BEEN DETAINED ON A VARIETY OF CHARGES BECAUSE OF THE MERE POSSIBILITY THAT THEY ARE TERRORISTS ..........................................................................................126
HUMAN RIGHTS ............................................................................................................................. 127

THE UNITED STATES HAS PERPETRATED EXTREME HUMAN RIGHTS ABUSES IN THE NAME OF THE WAR ON TERROR ..............................................................................................................................127 PRISONERS IN GUANTANAMO BAY SUFFER SIGNIFICANT HUMAN RIGHTS ABUSES......................128 THE STATUS QUO GIVES THE GOVERNMENT TOTAL AND EXCLUSIVE CONTROL OVER THE BODIES OF TERRORIST SUSPECTS .....................................................................................................129 NON-CITIZENS ARE OTHERIZED TO JUSTIFY DISCRIMINATORY SECURITY MEASURES ................130
INDEFINITE DETENTION................................................................................................................... 131

US DETENTION POLICIES HAVE WORLDWIDE SCOPE AND THREATEN INDEFINITE DETAINMENT .....................................................................................................................................................................131 THOUSANDS OF PEOPLE ARE PRESENTLY HELD IN A STATE OF INDEFINITE DETENTION BY THE UNITED STATES.........................................................................................................................................132 FAILURE TO MEANINGFULLY DEFINE WHAT CONSTITUTES A THREAT TO NATIONAL SECURITY INEVITABLY LEADS TO INDEFINITE DETENTION OF INNOCENT PEOPLE ..........................................133
MILITARY TRIBUNALS ..................................................................................................................... 134

THE OBAMA ADMINISTRATION HAS CONTINUED THE PRACTICE OF TRYING NON-CITIZENS BEFORE MILITARY COMMISSIONS AS A GENERAL RULE AND FAILED TO ARTICULATE CRITERIA FOR EXCEPTIONS TO THIS POLICY ........................................................................................................134 THE OBAMA ADMINISTRATIONS WILLINGNESS TO USE MILITARY TRIBUNALS MAKES CLOSING GUANTANAMO AN EMPTY GESTURE ......................................................................................................135 THE DECISION TO USE MILLITARY TRIBUNALS TO TRY SUSPECTED TERRORISTS IGNORES MODERN UNDERSTANDINGS OF DUE PROCESS .................................................................................136 MILITARY COMMISSIONS HAVE EXTREMELY WEAK PROTECTIONS AGAINST SELF-INCRIMINATION AND COERCED CONFESSIONS ...............................................................................................................137 MODERN FEDERAL RULES ALLOW FEDERAL COURTS TO HAVE ALMOST IDENTICAL PROCEDURES AS MILITARY COMMISSIONS FOR PROTECTING CLASSIFIED EVIDENCE................138 MILITARY COMMISSIONS OFFER NOTHING EVEN CLOSE TO DUE PROCESS PROTECTIONS .......139 THE STATUS QUOS LOOPHOLES ALLOWED A DETAINEE TO BE TORTURED AND THEN HAVE THEIR COERCED TESTIMONY BE USED AGAINST THEM IN A MILITARY COMMISSION ...................140 MILITARY COMMISSIONS UNDERMINE THE RULE OF LAW ..................................................................141
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MILITARY COMMISSIONS UNDERMINE THE SEPARATION OF POWERS ............................................142 MILITARY COMMISSIONS SIGNAL THE USS LACK OF COMMITMENT TO MORAL VALUES..............143 MILITARY COMMISSIONS UNDERMINE THE USS MORAL LEADERSHIP ............................................144 MILITARY COMMISSIONS UNDERMINE THE WAR ON TERROR ...........................................................145 DOMESTIC COURTS ARE AS IF NOT MORE EFFECTIVE THAN MILITARY COMMISSIONS ................146 MILITARY COMMISSIONS ARE A FORM OF DISCRIMINATION ..............................................................147 MILITARY COMMISSIONS LEAD TO A CRISIS OF LEGITIMACY ............................................................148 MILTARY COMMISSIONS ARE RIPE FOR APPEAL; THIS WILL LEAD TO COURT CLOG .....................149 MILTARY COMMISSIONS ARE RIPE FOR APPEAL; GITMO PROVES THAT THIS WILL LEAD TO COURT CLOG .............................................................................................................................................150 DOMESTIC CRIMINAL COURTS ARE MORE LIKELY TO GET A CONVICTION THAN MILITARY COMMISSIONS, THERE ARE MULTIPLE REASONS ................................................................................151 DOMESTIC CRIMINAL COURTS HAVE INCENTIVES FOR COOPERATION THAT MILITARY COMMISSIONS LACK .................................................................................................................................152 MILITARY COMMISSIONS ARE INCAPABLE OF INCENTIVIZING COOPERATION ................................153
INTERNATIONAL COURTS ................................................................................................................ 154

THERE IS NO INTERNATIONAL LEGAL BASIS FOR PROSECUTING TERRORISTS; THE COURTS MUST BE NATIONAL COURTS ..................................................................................................................154 ONLY DOMESTIC ARTICLE III COURTS CAN PROVIDE JUSTICE; INTERNATIONAL TRIBUNALS WILL BE UNSUCCESSFUL ..................................................................................................................................155
ENEMY COMBATANT DESIGNATIONS ............................................................................................... 156

DUE PROCESS PROTECTIONS ARE STRIPPED AWAY IN THE STATUS QUO BECAUSE OF THE ENEMY COMBATANT DESIGNATION .....................................................................................................156 CITIZENS AND NON-CITIZENS ARE SPORADICALLY AND ARBITRARILY GIVEN DIFFERENT SETS OF DUE PROCESS PROTECTIONS BASED ON THE ENEMY COMBATANT DESIGNATION ...................157 THE ENEMY COMBATANT LABEL IS USED ONLY WHEN THERE ISNT ENOUGH EVIDENCE TO ACTUALLY ACHIEVE A CONVICTION IN A FEDERAL COURT ................................................................158 THE GOVERNMENT USES THE ENEMY COMBATANT DESIGNATION TO COERCE THE COURT ROOM PROCESS .......................................................................................................................................159 THERE IS NO ACCOUNTABILITY FOR WHETHER A SUSPECT IS LABELED AN ENEMY COMBATANT, THE CRITERIA FOR BEING AN ENEMY COMBATANT ARE CLASSIFIED ..................160
NEGATIVE EVIDENCE ............................................................................................... 161

CONSTITUTIONAL ARGUMENTS ....................................................................................................... 161
THE DUE PROCESS CLAUSE OF THE 5 AMENDMENT DOES NOT APPLY TO NON-CITIZENS OUTSIDE OF THE UNITED STATES ..........................................................................................................161 CONGRESS HAS RECOGNIZED THAT THE PRESIDENT HAS THE AUTHORITY TO DETAIN SUSPECTED TERRORISTS IN ORDER TO PROTECT U.S. NATIONAL SECURITY INTERESTS..........162 PREVENTATIVE DETAINMENT IS CONSTITUTIONAL .............................................................................163
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MILITARY COMMISSIONS VERSUS FEDERAL COURTS ........................................................................ 164

THE DUE PROCESS PROTECTIONS OFFERED BY MILITARY COMMISSIONS HAS IMPROVED UNDER THE OBAMA ADMINISTRATION, THOUGH THE TRIBUNALS STILL HAVE SIGNIFICANT SHORTCOMINGS .......................................................................................................................................164 MILITARY COMMISSIONS HAVE SIGNIFICANT PROCEDURAL SAFEGUARDS ....................................165
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MILITARY COMMISSIONS ARE BETTER AT PROTECTING SENSITIVE INFORMATION, PROTECTING COURT EMPLOYEES, AND HAVE MORE FLEXIBLE RULES OF EVIDENCE THAN ARTICLE III COURTS .....................................................................................................................................................................166 MILITARY COMMISSIONS ARE AN EXTENSION OF THE U.S. MILITARY CAMPAIGN AGAINST TERRORIST GROUPS ................................................................................................................................167 MILITARY COMMISSIONS MAY IMPOSE THE DEATH PENALTY, A PUNISHMENT FAVORED BY MOST AMERICANS................................................................................................................................................168 MILITARY COMMISSIONS MEET THE ICCPR REQUIREMENTS FOR A FAIR TRIAL ............................169 INTERNATIONAL TRIBUNALS FAIL TO MAINTAIN US NATIONAL SECURITY AS WELL AS MILITARY COMMISSIONS ...........................................................................................................................................170 THE CONCERN THAT THE USE OF COMMISSIONS TO TRY NON-CITIZENS WILL MAKE IT HARDER TO PROTECT THE DUE PROCESS RIGHTS OF CITIZENS IS MISPLACED ...........................................171 TRYING ACCUSED TERRORISTS IN FEDERAL COURTS POSES UNIQUE PRACTICAL CHALLENGES .....................................................................................................................................................................172 THE CIRCUMSTANCES OF DETAINEE TRANSFER POSE UNIQUE EVIDENTIARY CHALLENGES FOR FEDERAL COURTS ....................................................................................................................................173 THE PROCEDURES FOR DEALING WITH CLASSIFIED EVIDENCE IN PRE-TRIAL DISCOVERY ARE INADEQUATE..............................................................................................................................................174 IT IS DIFFICULTY TO PROSECUTE LONG-DETAINED PRISONERS BECAUSE THEIR SUPPOSED RIGHT TO A SPEEDY TRIAL ......................................................................................................................175 MILITARY COMMISSIONS ARE VERY SAFE COMPARED TO FEDERAL COURTS ...............................176 MILITARY COMMISSIONS ARE MORE EFFICIENT THAN FEDERAL COURTS, HELPING TO GIVE THE ACCUSED A SPEEDY TRIAL. ....................................................................................................................177 MILITARY COMMISSIONS EMPANEL COMMISSIONED OFFICERS AS JURORS, USUALLY WITH A HIGH SECURITY CLEARNANCE, AND EMPLOY A MEANINGFUL APPEALS PROCESS.......................178 THE PRESIDENT HAS THE CONSTITUTIONAL AUTHORITY TO CREATE MILITARY COMMISSIONS UNDER ARTICLE II OF THE CONSTITUTION ...........................................................................................179 MILITARY COMMISSIONS AFFORD DEFENDANTS RELAXED DUE PROCESS PROTECTIONS .........180 THE RIGHT TO AN ATTORNEY BEFORE A MILITARY COMMISSION IS BASICALLY THE SAME AS THE SAME RIGHT IN FEDERAL COURT ...........................................................................................................181 MILITARY COMMISSIONS ADOPT A FLEXIBLE RULE AS TO WHETHER HEARSAY IS ADMISSIBLE .182 THE SPEEDY TRIAL REQUIREMENT COULD COMPROMISE PROSECUTIONS OF TERRORISTS IN FEDERAL COURTS ....................................................................................................................................183 THE STATUS QUO CRIMINAL PROCESS IS FLEXIBLE AND EFFICIENT ...............................................184 THE CRIMINAL JUSTICE SYSTEM IS NOT EQUIPPED TO TRY TERRORISTS IN SUCH A WAY THAT IT FIGHTS THE WAR ON TERROR ................................................................................................................185 MILITARY COMMISSIONS ARE PREFERABLE FOR FOUR REASONS...................................................186 MILITARY COMMISSIONS ARE FLEXIBLE, WHICH IS KEY TO ENSURING CRIMINAL JUSTICE .........187 MILITARY COMMISSIONS PROVIDE A FAIR TRIAL .................................................................................188 MILITARY COMMISSIONS DO NOT UNDERMINE THE WAR ON TERROR, PUBLIC TRIALS UNDERMINE THE WAR ON TRIAL ............................................................................................................189 MILITARY COMMISSIONS DO NOT UNDERMINE THE RULE OF LAW ...................................................190 MILITARY COMMISSIONS ARE NOT KANGAROO COURTS THAT HARM OUR CREDIBILITY ...........191 MILITARY COMISSIONS ARE PRIVATE, WHICH IS KEY TO PROTECTING CLASSIFIED INFORMATION .....................................................................................................................................................................192 PUBLIC TRIALS WOULD NOT LEAD TO FAIR TRIALS FOR TERRORIST SUSPECTS ..........................193
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CONSTITUTIONAL TRIALS WOULD REVEAL IMPORTANT CLASSIFIED INFORMATION .....................194 TRIALS WITH JURIES WILL INEVITABLY BE BIASED ..............................................................................195 CRIMINAL COURTS ARE ILL-EQUIPPED TO PROSECUTE TERRORISTS BECAUSE THEY DONT ALLOW RELIABLE INDICATORS OF GUILT LIKE CORRBORATED HEARSAY ......................................196 CRIMINAL TRIALS WILL COMPROMISE CLASSIFIED INFORMATION ...................................................197 PUBLIC TRIALS IN ARTICLE III COURTS POSES A THREAT TO JURORS ............................................198 HYBRID COURTS WILL LEAD TO BACKLASH..........................................................................................199 MILITARY COURTS ARE MORE EXPERIENCED THAN ARTICLE II COURTS AT TRYING WAR CRIMES .....................................................................................................................................................................200 CRIMINAL COURTS COULD BECOME TERRORIST TARGETS ..............................................................201 CRIMINAL COURTS MEAN CIVILIAN PRISONS, WHICH ENABLES EXTREMIST PROSELYTIZING .....202 EVEN THE SLIGHTEST DISCLOSURE OF SECRET EVIDENCE COULD EXPOSE INFORMANTS .......203 IT IS INEVITABLE THAT CLASSIFIED INFORMATION WILL LEAK BECAUSE OF LOOPHOLES IN CIP204
INTERNATIONAL COURTS ................................................................................................................ 205

PROSECUTION OF TERRORISM THROUGH AN INTERNATIONAL CRIMINAL TRIBUNAL HELPS TO AVOID THE USE OF FORCE THAT PRODUCES SIGNIFICANT HUMAN RIGHTS ABUSES AND VIOLATIONS OF INTERNATIONAL LAW ...................................................................................................206 INTERNATIONAL TRIBUNALS PROTECT DUE PROCESS AND HUMAN RIGHTS BETTER THAN MILITARY COMMISSIONS..........................................................................................................................207 USE OF INTERNATIONAL TRIBUNALS TO PROSECUTE TERRORISM IS ESSENTIAL TO PROTECTING HUMAN RIGHTS .........................................................................................................................................208 TERRORISM IS CONCEPTUALLY SIMILAR TO OTHER CRIMES AGAINST HUMANITY BECAUSE THERE IS A SENSE OF SHARED VICTIMHOOD AMONG THE TARGETED POPULATION ...................209 INTERNATIONAL COURTS ENSURE ACCESS TO REDRESS FOR VICTIMS OF TERRORISM ............210 THE ICTY SHOULD BE EXPANDED TO TRY CRIMES OF TERROR .......................................................211
COUNTER-TERRORISM ................................................................................................................... 212

THE BOUMEDIENE DECISION UNDERMINES BATTLEFIELD EFFECTIVENESS BY REQUIRING THE GATHERING OF EVIDENCE AND CREATES THE PERVERSE INCENTIVE TO KILL RATHER THAN CAPTURE ....................................................................................................................................................212 AL-QAEDA IS MARKEDLY DIFFERENT FROM OTHER TERRORIST ORGANIZATIONS........................213 AL-QAEDA SHOULD NOT BE THOUGHT OF AS CRIMINALS WHO BREAK THE LAW BUT AS THREATS TO SOVEREIGNTY ...................................................................................................................214 INDEFINITELY DETAINING TERRORIST IS JUSTIFIED BECAUSE, IF RELEASED, THE TERRORISTS WILL NOT BE DETERRED FROM COMMITTING TERRORIST ACTS ......................................................215 NOT INDEFINITELY DETAINING TERRORIST SUSPECTS HAS ALLOWED THEM TO GO FREE AND RETURN TO TERRORIST ORGANIZATIONS ............................................................................................216 NON-CITIZENS SHOULD BE GIVEN DUE PROCESS PROTECTIONS EXCEPT WHEN THEY POSE THE RISK OF CATASTROPHIC HARM; THEN THEY SHOULD BE INDEFINITELY DETAINED ......................217
DETAINEE STATUS ......................................................................................................................... 218

THE THIRD GENEVA CONVENTION DOES NOT APPLY TO DETAINEES ACCUSED OF MEMBERSHIP IN AL QAEDA ..............................................................................................................................................218 MEMBERS OF AL QAEDA ARE NOT PRISONERS OF WAR UNDER THE GENEVA CONVENTION .....219 TO PROTECT INDIVIDUAL LIBERTY WHILE INDEFINITELY DETAINING, THE USFG COULD MAKE AVAILABLE INDEPENDENT INVESTIGATIVE TEAMS ..............................................................................220
SOCIAL CONTRACT ........................................................................................................................ 221
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EXTENDING THE SAME DUE PROCESS PROTECTIONS TO NON-CITIZEN TERRORIST SUSPECTS CHEAPENS THE RIGHTS OF CITIZENS ...................................................................................................221
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Topic Analysis by Jane Kessner

Introduction
The majority of the topics debated during the 2011-2012 season were somewhat timeless questions of individual ethics: Must we recognize animal rights in order to be just? Are we each individually obligated to assist people in need? Does morality permit victims of domestic violence to use deadly force against their abusers? As such, many younger debaters have little experience debating about political philosophy and current events. If debated well, this resolution will force students to learn about various philosophies of state obligation, international relations theory, political controversies concerning the War on Terror, constitutional interpretation, and more. While the September/October resolution is contemporary as compared to many of last year's non-located questions of value, the crux of the resolutional question has been debated amongst policymakers, political scientists, constitutional scholars, and politicos since the aftermath of the September 11 attacks. Writing in 2002, Professor of Law at the George Washington University Laura Dickinson1 explains the history behind the conflict scenario within the resolution:
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On November 13, 2001 President Bush issued an executive order asserting the authority to use military commissions to try individual terrorism suspects captured by the United States. Such commissions would be conducted unilaterally by the United States and would not be required to include any procedural safeguards to protect the rights of the accused. Even though the Administration added some procedural protections in its subsequent regulations for the tribunals, these regulations still offer no actually enforceable rights to the accused, provide no guarantee that the tribunals will be open to the media or the public, and do not permit any independent judicial review. Moreover, those who have supported the use of the commissions have made clear-if not in their explicit rhetoric then in the procedures that they have proposed and condoned-that they view law as an inconvenience at moments when real interests are threatened and real action is necessary...In a sense, then, this crisis has forced us to revisit the question of what the rule of law gets us as a nation and as a people, particularly the role that legal process values themselves might play in long-term efforts to combat terrorism.
Dickinson, Laura A. [Oswald Symister Colclough Research Professor of Law, George Washington University Law School]. "Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law." Southern California Law Review (2002). Vol 75: 1407-1492. http://www-bcf.usc.edu/~usclrev/pdf/075602.pdf. pg. 1410.
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Obviously, some political circumstances have changed since 2002. The judicial discussion of a provision allowing for indefinite detention in the 2012 version of the National Defense Authorization Act (NDAA) resulted in greater scrutiny of the practice of curtailing due process rights, but the government has yet to substantially change its policies in this realm. Likewise, many detainees have been released from the Guantanamo Bay detention center, but it has yet to actually close. Thus, while more than a decade has passed since the launch of the War on Terror, the question of what place due process protections should have in the effort to combat terrorism remains unanswered. Debating this resolution in 2012 rather than 2002 has some clear advantages. First, this topic allows for interesting discussions of the progression of US foreign policy over the past decade and counterfactual thought experiments. Second, in the time that has elapsed between 9/11 and the present, a body of topic literature has emerged that is prolific, high-quality, and varied. Of course, a great deal of evidence can be found in academic journals, law reviews, and court decisions. Additionally though, political philosophers and international relations theorists have written a library's worth of volumes altering or applying their general views within the specific context of a post-9/11 world. For debaters looking to run nuanced political theories, nuanced arguments about international relations beyond the realism catchphrase, or critical philosophy, this topic is a goldmine. If debaters allow their strategies on this topic to be driven by research, debates will nuanced and wide-ranging. The next two months will take a turn for the worse if debaters keep trying to apply the generic arguments that they've run throughout the past year. Depending upon definitions and interpretations, the distinction between affirmative and negative ground is potentially small enough that common philosophical frameworks run in LD will not be at all conducive to proving one side of the resolution over the other. If not essentialized, the resolutional question is narrow enough as to demand highly specific discussions of slight variations between political theories.
Definitions and Interpretational Issues
Mastering the definitional and interpretational debate will be crucial for this topic. Almost every term in the resolution has multiple plausible interpretations, and many of those interpretations drastically alter what each side must or may defend. Luckily though, the definitional debates on this topic, if done well, could actually be substantive, stimulating discussions. This is because many of these debates are real-world disputes that have played out in the topic literature (ex. Whether due process rights are substantive or procedural, whether the meaning of ought changes when applied to the government, whether aiding and abetting counts as terrorism). The
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best definitions will be contextual and tailored to support a specific case position. So, rather than rattle off atomistic dictionary definitions, let's examine the terms:
The United States The key interpretational debate here will concern which branch of the US government should extend due process rights. The resolution does not specify the judicial branch or even the US federal government. So, the affirmative could argue that individual states ought to extend due process protections, though that seems like an odd choice with little strategic value. The more interesting debate is whether the affirmative must advocate action by the judicial branch, or if the affirmative can instead support giving the same (depending on the interpretation of same) due process rights to non-citizens but still treating them within the military apparatus, which falls under the executive branch. Or, perhaps the affirmative could advocate the creation of an entirely new process for trying all people accused of terrorism, citizen or non-citizen, within the reach of the executive branch. Alternatively, the affirmative might propose that the legislative branch pass some law that functions to extend due process rights to non-citizens accused of terrorism. My point here is simply that while most affirmatives will advocate actions within the judicial system, that is not a given.
Ought Two factors render the meaning of ought in this resolution somewhat unclear: the constitutional context and the fact that the actor is a government. Some affirmatives will fail to clearly define ought and will go on to make arguments about how the constitution does not explicitly distinguish between citizens and non-citizens except for a couple of designated rights, such as the rights to vote and run for political office. So, they will conclude, limiting other due process rights to only citizens is unconstitutional. Absent a clear discussion of what ought means, this line of argument is problematic. We generally view ought as having some prescriptive meaning, but the argument above assumes that ought just means does: the constitution does give due process rights to noncitizens. But perhaps the constitution ought not to do that, or perhaps we ought to ignore the constitution. If the affirmative proves that the constitution does give equal rights but the negative proves giving such rights is immoral, then it seems that we ought not to do it even if, in constitutional terms, we currently do. The affirmative might be defending what is the current correct reading of the constitution, but the negative here would be proving that we should abandon that reading or disregard accurate constitutional interpretation altogether in this case
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and do what is moral. Or, the negative can argue that the constitution is obviously unclear on this issue (that's why we're having the debate in the first place. It's not obvious within the constitution) so we should debate about what would be better or worse to do in terms of morality because judicial activism (inserting moral views into how we use the constitution) is necessary to resolve constitutional disputes that are not clearly answered by pure textual analysis. The point of all of these scenarios is to prove that in order for the given affirmative argument to be complete, there needs to be some reason as to why the US ought to abide by the constitution. There are three types of reasons that could be provided here, which I think represent the three ways in which ought can be interpreted in this resolution. First, "ought" might be contextualized in terms of constitutional due process rights. This interpretational argument would proceed as follows: The meaning of ought is modified by the fact that we are asking what the US ought to do in terms of the constitution; how should we treat/apply the due process components of the constitution? Ought questions about the constitution are always just questions of constitutional reading or interpretation. When we ask what we ought do with regards to the constitution, we don't set up some external moral or political theory and prove why doing X or Y with the constitution would be better in terms of that theory. Rather, we just ask whether X or Y is more consistent with an appropriate reading of the constitution. For example, when the Supreme Court makes decisions about what we ought to do with certain parts of the constitution, they simply determine what is the constitutional thing to do, what is an appropriate interpretation of the constitution in any given case. Justices do not (or, at least, probably should not) make decisions solely based upon their own moral of political beliefs, but based on what the constitution and previous case law says. A quick side note here is that even under this interpretation, there is still a possibility that moral values may influence our reading of the constitution, though within limits. If we believe in judicial activism, then inserting moral values into constitutional interpretation is both necessary and acceptable. Many scholars argue that even judges who claim to reject judicial activism fail because attempts at pure textual interpretation always ultimately require the imposition of our own values. If affirmatives choose this interpretation, the question of the resolution becomes: upon correctly interpreting the constitution, do we arrive at the conclusion that it demands due process rights for non-citizens accused of terrorism? Second, ought could be a question of government obligations. According to this view, when we ask what the US ought to do, we are not appealing to some abstract moral values, but are instead asking what a government's political obligations are. The meaning of ought itself, not just what morality is, can change depending on the actor or context. Thus, when we ask what a government ought to do, we are asking what would allow it to be a legitimate state, uphold its
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contractual obligations, etc. This argument could take the form of a sort of role obligations theory: when we ask what a policeman ought to do, the answer is different than what a student ought to do. Likewise, collectives such as clubs, corporations, or governments have different rolebased obligations than individuals. Look into political philosophy to find answers to the question of what states ought to do. Even if states do not act according to morality in the same that that individuals do, that doesn't mean that all ought statements about governments are automatically false. It probably means that, when applied to states, ought is not about morality in the individual sense, it is about state obligations, be those moral or otherwise. Someone running a constitutional case could claim that the US government's political obligation is to abide by the constitution. Third, ought could be defined as it often is: ought implies a moral obligation. If a debater wants to define ought in this way, they will need to make one of two moves. Either, they must run some moral theory that is designed to apply to the state. For example, they could run some political philosophy that specifically discusses the morality of state action, and why state obligations are moral obligations. Or, if the debater wants to run a moral theory that is typically applied to individuals and formulated so as to only generate individual moral obligations, they must make extra arguments for why such a moral theory also applies to the state. For instance, the fact that individuals have an obligation not to use people as a means to an end does not necessarily imply that states have the same obligation. It is certainly possible, but the debater must actually make an argument for why moral theories that seem to apply only to individuals can also function to restrict government action. Someone running a constitutional case could claim that following the constitution is moral under whatever theory of morality they establish. The point here is that you cannot just assume that ought is talking about morality in the abstract like you could when debating last year's topics that were all about individuals.
Extend to This phrase should not prove to be a major point of contestation. Extending constitutional due process rights to non-citizens probably means taking the same rights that we grant to citizens and just expanding their reach so that they apply to non-citizens as well. One slightly sneaky definition of extend might be used to suggest that non-citizens could still refuse such rights in a way that citizens cannot. I could extend you my hand, but you could refuse to take it. Perhaps extend is purposefully differentiated from grant to imply that, in the affirmative world, while citizens necessarily have due process rights, non-citizens accused of terrorism can choose to take the rights that have been extended to them or not. I don't think this interpretation would have much strategic value, and it is also probably incorrect. The resolution does not seem to use the word
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extend as in I extended my hand to you, but instead is most likely about extending the circle of rights.
Non-citizens This term is mostly clear as well, though there are categories of non-citizens which might complicate things. Some non-citizens are permanent legal residents who live in the US, pay at least some taxes, etc. Others might have never set foot on US soil. In terms of social contractesque arguments, this distinction might become important, because it seems that at least some non-citizens do give up certain rights to the US government in exchange for protection. There is also the murky issue of people who have renounced their citizenship. Do people still deserve protections that they would have had as a citizen if they purposefully give up their citizenship, perhaps out of opposition to the US?
Accused
Accused will probably become a major source of interpretation disputes. There are two main possible definitions of accused. One on hand, accused might mean formally charged (note that charged does not mean convicted. Innocence is still possible). By the time someone has been accused of terrorism, they have already entered the criminal justice system. However, there seem to be cases in which the US government claims that people have been involved in terrorist activity before formally bringing charges against them. This leads to the second interpretation, under which accused just means that the person has been suspected of terrorism, or that there is some amount of evidence against them. A person need not be formally charged or have already entered into the legal system to be accused. Under the first definition, the affirmative need only defend extending due process rights to noncitizens who have been formally charged with an act of terrorism. So technically, things like indefinite detention and targeted killing could fall within affirmative ground, because these are often done before formal charging takes place, and the affirmative must only defend giving due process rights after the charging has occurred. Under this definition, the affirmative cannot run criticisms of targeted killing, indefinite detention, etc., and the negative cannot argue that those things are good. One interesting result of this definition is that in the affirmative world, authorities might decide to never charge those suspected of terrorism at all, since once charged, they must be given due process. So, the government will circumvent legal restrictions by never bringing suspects into the judicial system in the first place. If the affirmative runs or agrees to this definition, negatives might want to run some sort of overview argument that says that any
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affirmative arguments that the negative greatly expands state power and does terrible things to non-citizens are exacerbated in the affirmative world, because the affirmative creates a perverse incentive to sidestep the legal system altogether by not charging. The War on Terror then occurs underground, and is entirely non-transparent. One problem with the second definition is vagueness. If accused does not mean formally charged, what exactly does it mean? Is accused synonymous with suspected, or does a verbal or written accusation of some form have to be made? How much evidence must the accuser have against the accused? Who is doing the accusing? Still, even if we are not able to answer all if these questions, it seems that the US often says that people have engaged in terrorist acts before they have been formally charged. This more expansive definition allows the affirmative to criticize the general US practice of evading the rule of law in combatting terrorism, and the negative to defend it. Sure, it is a bit vague, but that is not necessarily a reason to reject it.
Terrorism
There are two main questions about the definition of terrorism. First, does the affirmative need to defend giving due process rights to all non-citizens accused of any type of terrorism, or can they specify a type of terrorism? For example, in addition to terrorists who use conventional weapons or engage in hijackings, there is cyber-terrorism and eco-terrorism. Cyber-terrorists wreak havoc through technology, while so-called eco-terrorists put dangerous spikes in trees to deter lumber companies, illegally raid animal slaughter facilities and rescue animals, etc. These types of terrorists might pose different threats than what we typically consider to be terrorism, and so it might be strategic for affirmatives to run plans about specific, less commonly discussed forms of terrorism. The second question concerns how involved someone needs to be in order to be accused of terrorism? Does terrorism mean an actual act of violence, or can it include merely being a member of a terrorist organization or aiding and abetting terrorists? Can mere henchmen within a terrorist organization be accused of terrorism, even if they did not actually carry out an act of violence? What about leaders of terrorist organizations who do not actually commit attacks themselves? Negatives will often assume that if someone has been accused of terrorism, they have been accused of a major violent act, but depending on the definition of terrorism and whether conspiracy or providing aid counts as terrorism, it is possible that the accused has not directly perpetrated violence.
Same constitutional due process protections
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West's Encyclopedia of American Law2 provides the basic definition of constitutional due process protections: A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious. The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law." This amendment restricts the powers of the federal government and applies only to actions by it. The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares,"[N]or shall any State deprive any person of life, liberty, or property, without due process of law" ( 1). This clause limits the powers of the states, rather than those of the federal government. In its most basic formulation, due process ensures that governmental whims or moment-tomoment interests may not usurp individual rights or the fundamental rule of law. But this definition of due process is not necessarily sufficient to clarify ground on the topic. Many debaters will read the phrase constitutional due process protections and assume that it refers to a specific list of protections within the criminal justice system: freedom from double jeopardy, freedom from cruel and unusual punishment, the right to a speedy and public trial, the right to an attorney, etc. This might be a correct interpretation, but cannot immediately be assumed. These types of protections are what are called procedural due process, which according to West's Encyclopedia, are the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life, liberty, or property. Procedural due process limits the exercise of power by the state and federal governments by requiring that they follow certain procedures in criminal and civil matters. In addition to procedural due process, there exists the notion of substantive due process. West's Encyclopedia illuminates the distinction:
"Due Process of Law." West's Encyclopedia of American Law, edition 2. 2008. The Gale Group. http://legal-dictionary.thefreedictionary.com/Due+Process+of+Law
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The application of constitutional due process is traditionally divided into the two categories of Substantive Due Process and procedural due process. These categories are derived from a distinction that is made between two types of law. Substantive Law creates, defines, and regulates rights, whereas procedural law enforces those rights or seeks redress for their violation. Thus, in the United States, substantive due process is concerned with such issues as Freedom of Speech and privacy, whereas procedural due process is concerned with provisions such as the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney. So, procedural due process is ensuring the application of specific procedures, probably those enshrined in the Bill of Rights (right to a speedy and public trial, freedom from unreasonable searches and seizures, and so on). Substantive due process is about the content of basic rights that allow individuals to exercise autonomy is the face of a government monopoly on power, such as the rights to life, freedom and property. While procedural due process requires the government to use specific procedures in court proceedings, substantive due process requires the government to abstain from taking one's life, freedom, or property without the right kind of reason even if the technically appropriate procedures are applied. Scholars who believe in the importance of substantive due process think that the government has to do more than just ensure that a certain process or formalistic set of steps is followed; it has to ensure that the substance of rights is upheld. The procedural vs. substantive due process distinction points to different possible interpretations of what it means to extend the same constitutional due process protections to non-citizens. Does the affirmative have to argue that the US ought give the exact same procedural due process rights to non-citizens accused of terrorism, that we ought literally treat them in the exact same way? Or, can the affirmative advocate extending the same substantive due process rights, which allows for and might even require different specific procedures? There might be certain procedural rights that the US grants to citizens that just would not make much sense or would be counterproductive when applied to non-citizens accused of terrorism. Since non-citizens face different circumstances, it is possible that different specific procedures would be needed to uphold the same substantive due process rights. So, affirmatives could potentially define due process in the substantive sense, and then argue that we should use some sort of international court or our own military tribunals to try non-citizens accused of terrorism, because while this involves using different procedures, it results in upholding the same substantive rights better than if we were to use the exact same procedures. This is an interesting way for the affirmative to co-opt possible negative advocacies. The
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substantive interpretation is also a good way for affirmatives to get out of negatives that claim that one specific procedural due process right is bad or incoherent when we attempt to apply it to noncitizens. If affirmative must only defend giving the same substantive due process, then the fact that one specific procedural right has some implementation flaw is irrelevant to the affirmative advocacy. Negatives could also run topicality arguments claiming that the affirmative must defend sameness in terms of both procedural and substantive due process. So, if the affirmative (as many will) only discusses the importance of applying specific procedures, but the negative proves that applying those procedures to non-citizens does not result in the same substantive rights being upheld, that is not only a reason why the affirmative does not solve, it becomes a reason why the affirmative is no longer topical. One possible answer to the substantive interpretation is that the resolution specifies due process protections, rather than just saying due process. Even if due process could be substantive, due process protections are procedural safeguards put in place to uphold substantive rights. This is a fairly persuasive line of argument, though not necessarily a reason why the substantive interpretation is irrecoverably wrong. If due process should be about substance rather than procedure, and a certain procedure would be incoherent or harmful to the accused when applied to non-citizens accused of terrorism, that procedure would cease to be a true protection at all. If due process is about substance, than a same protection seems to be whatever would promote the same level of respect for the most important substantive rights, not necessarily the exact same procedure that is used for citizens. All of this is mainly to say that debaters should delve into general literature on the meaning of due process. Extending the same constitutional due process protections does not necessarily mean taking a concrete list of rights and bestowing them upon non-citizens accused of terrorism. The question of what due process means and what particular actions upholding due process demands is complex, so debaters should engage it as such.
Grants The word grants probably helps clarify one possible interpretational dispute on the topic: whether the affirmative must defend taking whatever constitutional due process rights the US currently gives citizens and extending them to non-citizens accused of terrorism, or if the affirmative can just argue that whatever rights we choose to give to citizens (even if those are different from what we do in the status quo), those should be given to non-citizens accused of terrorism as well. Grants is in the present tense and refers to constitutional due process protections, so it seems as if debaters' task is to figure out what constitutional due process
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protections the US does currently grant to citizens, and argue that the US ought or ought not extend those to non-citizens accused of terrorism. The alternative interpretation is that grants is not necessarily in the present tense: I could say The US ought to treat extraterrestrial aliens just like it treats unicorns. Obviously, the US does not currently treat unicorns in any way at all, because unicorns do not, to our knowledge, exist. So, affirmative arguments on that topic would probably say that there is some common factor between aliens and unicorns such that however we would treat unicorns, were they to exist, we would have to treat aliens in the same way. Likewise, debaters on this topic can argue that whatever rights the US grants to citizens, which might be different from the rights that are currently granted, those rights should also be extended to non-citizens accused of terrorism. This dispute will be impactful because many affirmatives will argue that there is no morally relevant distinction between citizens and non-citizens, without explaining why specific constitutional due process rights could be effectively applied to non-citizens accused of terrorism. Then, negatives will essentially concede that there is no morally relevant distinction, but argue that applying X or Y due process right that is applied to citizens in the status quo to non-citizens accused of terrorism will be practically difficult, incoherent, etc. What is really going on here is that debaters are operating under different interpretations of grants, so specifying an interpretation and arguing for it will help resolve this common sub-debate.
To citizens Note that the resolution ends with to citizens and not to citizens accused of terrorism. Some debaters will claim that the resolution implies the latter, even if it does not state it explicitly. The US sometimes denies due process protections to citizens accused of terrorism, so extending the same constitutional due process protections to non-citizens accused of terrorism might not actually require giving them full constitutional due process, since the US does not even give that to similarly accused citizens. The alternative interpretation is that to citizens means that the affirmative must defend taking the constitutional due process protections we grant to typical citizens, not specifically those accused of terrorism, and extend them to non-citizens accused of terrorism. This second interpretation requires the affirmative to defend more rights for noncitizens accused of terrorism.
Framework
As I mentioned in my discussion of the term ought, political philosophy is the way to go in constructing values and criteria on this topic. You values and standards analysis should answer
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questions such as: what is a state? What is a state in the international realm, especially in an age of terrorism? What is the US? Based on your answer to the question of what a state is, ask: What must states do? Specifically, what obligations does the US have in the contemporary political climate? What conditions must a theory of state obligation meet to be deemed an appropriate political theory? Once you have established those conditions, explain how a certain political theory or a subset of that theory meets those conditions, and (at the contention level) why advocates of that political theory would affirm or negate. My suggestion is to look into nuanced political philosophy. Don't just run the social contract without developing a more specific variety of social contract theory and explaining exactly what is required under by the principles of contractual philosophy. Look into the politics of recognition, the origins of rights, consent theories, the interaction between consequentialist concerns and absolute rights, theories of global justice, theories of citizenship, and so on. There is phenomenal, highly nuanced framework-level literature on this topic, so I implore you to abandon the same generic Locke card that you use on every topic and start having standards debates that are also debates about the topic.
Affirmative Positions
Affirmatives have a great deal of choice on this resolution. There are a number of approaches that affirmatives can take, each with quality support in topic literature. Here is a run-down of some core affirmative positions:
The Intrinsic Importance of Rights This position argues that rights are important in and of themselves. Constitutional due process protections are an extension of basic human rights within a particular political system. Without due process rights, we violate basic human rights (ex. Torture, Guantanamo Bay, etc.). If we care about basic human rights, and constitutional due process rights are the manifestation of those rights within the criminal justice system, then constitutional due process rights have intrinsic value and cannot be denied to any one with basic human rights. Essentially, this approach requires identifying a reason X why due process rights are important in the first place, arguing that X is not unique to citizens, so it follows that non-citizens need due process rights as well. This sort of position could be run with some deontological framework. We can never violate rights/use people as a means to an end. Thus, we can't just do whatever we want to accused terrorists to prevent future terrorist attacks. If due process rights are key to not using citizens as a means to an end, then they would seem to be key for non-citizens as well.
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From a more political standpoint, affirmatives can argue that due process rights are an essential component of governmental obligations. Due process furthers the system of check and balances, extends social contract duties, etc. So, a legitimate government must always provide due process rights. Whatever the reason is for why government must always provide due process rights to citizens is universal, it cannot be non-arbitrarily limited to citizens. Thus, a legitimate government must always provide due process rights regardless of citizenship.
No Distinction No distinction affirmatives are sure to be common. This case says that if there is no morally relevant distinction between citizens and non-citizens, then of course we should treat them the same, so the affirmative must just prove that no morally relevant distinction exists. There are many possible reasons why no morally relevant distinction exists, and affirmatives that employ this approach are sure to use multiple reasons within their cases. There are two reasons why I do not think that this line of reasoning necessarily works. This case position could be coherent, but requires a bit more thought. First, the conception of morality under which there is no morally relevant distinction must be the same conception under which the state must operate, the same conception of morality that governs what the state ought to do. There cannot be a disconnect. You need to argue in favor of some theory of morality and then argue that there is no morally relevant distinction under that particular ethical theory. Otherwise, you'll just have a bunch of random arguments that no distinction exists, each appealing to different moral theories. This is especially problematic if the negative sets up a unique theory of how the word ought applies to the state. If ought questions about the state are not questions of morality at all, then it seems that what the US ought to do can be established without even evaluating morally relevant distinctions. If what a state ought to do is a question of Z rather than of morality, then there would have to be no Z-ly relevant distinction to affirm. Or, the affirmative can explain how it would be contrary to Z for the US to treat morally equivalent categories of people as distinct from one another. Second, just because two groups of people are morally equivalent does not mean that we treat them exactly the same. This is especially important if the affirmative defends giving citizens and non-citizens the same procedural rights. For example, we think that physically disabled people are moral equals, but give them different (extra) procedural rights to accommodate their needs (special parking spaces, etc.). In order for this affirmative case to work, you need a reason why the fact that non-citizens are morally equal means we would give the same due process rights,
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rather than just the same basic human rights. If they are equal on a human level, then it seems like we would give them the same human rights. However, due process rights are very particular legal protections. So, this affirmative needs to make an argument why human moral equality demands equal application of legal rights.
Constitutionality This case can be run in one of two ways. First, it can operate under the first interpretation of ought that I discussed, and thus argue that the resolution just is a question of constitutional interpretation. Or, it can argue that the abiding by the constitution is normatively good, so even if the resolution is a general question of what is moral, what is moral is in fact what is constitutional. In order to run this case well, you explain how the constitution should be interpreted. Is whatever the Supreme Court decides in case law what is constitutional? Or should debaters themselves engage in an interpretative debate during the round? Who's to say what is or isn't constitutional, given that legal scholars often disagree with Supreme Court decisions, and justices disagree with one another? Once you have established the way in which we should go about determining what is or is not constitutional, you can argue that under that method of constitutional interpretation, extending due process rights to non-citizens is required by the constitution.
Cosmopolitanism This argument is similar to the no distinction case but a bit different. Cosmopolitans argue that that we live in a globalized world and our obligations must transcend borders, even if there are some relevant distinctions between citizens and non-citizens. The world is one large community, and the artificial divides created by national borders are harmful, so we should act as if borders do not exist and extend rights as much as possible. A more critical version of this argument could also be made. Using the philosophy of Emmanuel Levinas, you could argue that we must embrace the Other by giving them the same rights as we give our countrymen. Only by embracing the other as one of our own can we understand ourselves and the meaning of ethics.
US Exceptionalism Bad This AC would argue that the resolution embraces US exceptionalism, or the notion that the US can pretty much do anything that it wants to foreigners in order to uphold its own supposed national interest. The US can circumvent international law and even its own due process restrictions in the name of national security. Then, this case would say that US exceptionalism is wrong, for a number of possible reasons. Basically, the US going it alone and denying others
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rights in pursuit of its self-interest - the anything for the War on Terror mentality is bad. This could be either for non-consequentialist moral reasons, or because of the end results. Possible arguments include: A) Exceptionalism promotes US hegemony, which is problematic either because hegemony is generally bad, or because the US is just not really on top in the way that it once was and needs to accept that in order to move towards a stable world. B) On a philosophical level, the state of exception is bad. This is a bit complicated to explain in a paragraph, so I encourage you to look into the work of Giorgio Agamben if you're interested in running this position. C) US exceptionalism/defiance of the rule of law models bad behavior, encouraging other countries to circumvent agreed upon international norms as well. Try to research specific scenarios in which another country modeling the US's law-avoiding practices and taking the fight against terrorism purely into their own, supposedly competent hands would be harmful. D) Following international law is key to global stability. Many of the due process rights in our constitution are also enshrined in international law, to denying rights to non-citizens is likely oppositional to international norms. E) International cooperation would be a better way to fight terrorism. Acting within legal boundaries and treating foreigners as humans deserving legal rights increase US soft power and promotes such cooperation. If we truly want to stop terrorism, we need to work with other countries, not treat their citizens terribly.
Affirming Reduces Terrorism Many affirmatives will argue that extending due process rights to non-citizens actually minimizes terrorism rather than making it more difficult to combat. One common argument is that the ideology of terror is driven by unequal treatment and perceived discrimination against the nonWestern world. Al-Qaeda used horror stories from Guantanamo as a recruitment method. It is precisely the fact that we treat those accused of terrorism as less than human that terrorists or potential terrorists hate the US so vehemently. Also, if the US were to treat those accused of terrorists, often people with Muslim association, more humanely, the US would be better able to cooperate with Muslim communities. Cooperation is the best way to prevent terrorism in the long term, but the more we ostracize the communities from which terrorists arise, the harder cooperation becomes.
Affirming Helps US Citizens/Peaceful Non-Citizens
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This affirmative is a good way of preemptively turning a common negative position. Giving noncitizens due process rights makes the US government more likely to treat citizens well and ensure that they receive due process. As soon as we start denying due process rights to some, we risk something of a slippery slope where the denial of rights becomes acceptable, so citizens' rights are abandoned as well. A variation on this argument would say that denying due process rights on the basis of not being a citizen sets the precedent that all non-citizens have no rights, justifying terrible immigration policies, discrimination based on race and ethnicity, and so on.
Threat-construction/securitization The most common critical approach to the topic is likely to be a threat-construction or securitization argument. According to these theories, the US actually creates or constructs the threat of terrorism by preemptively overreacting to it. When we say that terrorism is such a grave threat that we must go to war against it, and that we can take away any rights in the name of fighting it, we construct the very terrorist threat that we are combatting. Extra-legal approaches to fighting terrorism make it seem like a worse problem than it is, which legitimizes real violence (ex. Torture, the war in Iraq) for the sake of ending the constructed threat. The problem is cyclical, because every action that we take to reduce the threat, such as denying due process rights, only increases it.
Negative Positions
This section will be brief, because many negative positions will just take the main premise of the affirmative positions discussed above and argue the opposite. So, negative cases will argue that there is a distinction between citizens and non-citizens, that US exceptionalism is good, that negating better prevents terrorism, and so on. Here are some other key negative advocacies:
Social Contract Many negatives will run variations of social contract theory to prove that the origin of rights is the fact that people give up certain freedoms in exchange for governmental protection. So, governments have unique obligations to protect their citizens, but do not have an obligation to give legal rights to non-citizens, as they are not a part of the contract. You should think carefully about how you run this argument. It seems absurd to say that the US can do whatever it wants to people who are not contractually linked to it. It is not generally viewed as moral for the US to brutally kill any non-citizen with no explanation whenever they pose a
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.00000000000000000000000001 risk of a national security risk. So, social contract-esque cases should be written with sufficient nuance to prevent this consequence.
Realism/National Security Realism is an international relations theory that says that because the international realm is anarchic, nations must constantly look out for their own self-interest and try to increase their own relative share of power. So, debaters will conclude that realism justifies unilateral, hardliner policies on terrorism because the US must look out for itself first. Realist cases are best run in conjunction with some sort of ticking bomb argument, which says that because terrorist threats could always be imminent, we cannot use excessive procedure, as it will delay our response to terrorism. Formalistic rules of evidence, for example, drastically slow down the process. Instead, we must be able to use extra-legal measures to interrogate those accused of terrorism to prevent an attack from happening in the meantime. There is a lot in the topic literature about why granting non-citizens accused of terrorism due process rights might make it more difficult for the US to accomplish its own national security goals.
Intelligence Leaks If non-citizens accused of terrorism are given a full set of procedural due process rights, they will have the right to see the evidence against them, and the presentation of proof will be open to the public. This could cause sensitive intelligence about national security matters to be revealed. There are some methods of altering documents to prevent information from being leaked in a harmful way, but these methods are not foolproof. So, terrorists or other enemies of the US could get hold of foreign policy secrets, greatly harming US interests.
Dangers of Trying the Accused in the Judicial System One reason why there are still people being detained at Guantanamo is because no states in the US are willing to take them in or try them. There are cases is which non-citizens accused of terrorism have been tried in the mainland US (rather than in military tribunals) and have committed violent acts against judges and juries, or their non-accused networks have committed such attacks. Bringing the accused into the criminal justice system so as to grant them due process rights could be extraordinarily difficult, and even physically dangerous.
Delegitimizing Terrorism
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This argument says that denying those accused of terrorism due process rights establishes them as outside of the law, and thus delegitimizes the practice of terrorism. If we were to give the accused due process rights, we'd be treating terrorism as a legitimate form of opposition, giving it our tacit approval. In order to undermine the very concept of terrorism, we must treat it as entirely external to the law.
Procedural Criticisms When affirmative define due process in procedural terms, one common negative strategy will be to criticize specific procedural due process rights. This is best done if the negative provides a reason why that right might be good when applied to citizens, but is somehow harmful or difficult to implement when applied to non-citizens accused of terrorism. Research lists of common procedural due process rights in order to find ones that might be ripe for criticism.
Counterplans
Possible counterplans on this topic include military tribunals, various international courts, or giving non-citizens accused of terrorism a different set of due process protections. All of these counterplans would explain why some alternative method of dealing with non-citizens accused on terrorism would co-opt advantages to affirming while avoiding the harms associated with extending the same due process rights within the US criminal justice system. Beware of international court counterplans though, there are serious theoretical issues with this position. When the US is deciding how it should treat non-citizens accused of terrorism, it does not have the option of magically bringing into existence a utopian international court that is fantastic at giving due process rights to those accused of terrorism. So, this might not be a realistic alternative.
Disadvantages There are a number of interesting disadvantages on this topic stemming from the political implications of what affirming would look like in the real world. Affirming might require shutting down or greatly downsizing Guantanamo, which could be logistically difficult and have political ramifications. Also, affirming could affect the upcoming elections. For example, if Obama were to greatly change the way in which the US combats terrorism by ending the use of extra-legal measures, that could lead moderates who nonetheless advocate a hardliner stance against terrorism to vote for Romney. Negatives might argue that affirming could change the outcome of the election, and then claim that that changed outcome is harmful for a number of possible
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reasons. Negatives can also run disadvantages to ending specific practices that the affirmative would have to get rid of, such as banning targeted killing or torture. There are good arguments for why even if targeted killing and torture are sometimes harmful, they must remain foreign policy options.
Concluding Thoughts
This topic is a great opportunity to go outside of your comfort zone. Research a political philosophy that you've never heard of before, learn about constitutional law, cut an extremely recent politics disadvantage, and so on. There a lot of levels to explore here, and I don't think that one is the single best approach. If debaters allow their cases to be inspired by (the wide variety of) topic literature, this topic will be a success.
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Topic Analysis by Geoffrey Kristof

INTRO
This resolution follows a similar vein to past resolutions like the animal rights topic and the juvenile felons one, in that it questions whether two classes of beings or individuals deserve similar treatment. No doubt the same slew of arguments will be heard, including nailbomb affirmatives and dumps of a zillion morally relevant distinctions by the neg. Yet this topic, though far narrower than previous ones, is also more versatile. There is a great abundance of philosophical, legal, and policymaking literature on both sides of the issue. The topic literature also benefits from a number of high-profile court cases including Latif v. Obama (Latif, a Guantanamo prisoner, won his release, only to have the decision overturned) and Hamdan v. Rumsfeld (the Supreme Court ruled that Bushs handling of Guantanamo detainees violated the Geneva Conventions and Uniform Code of Military Justice). The breadth of literature on the topic, as well as the philosophical nature of the resolutions question itself, guarantee that there will be myriad angles from which to approach the resolution. This topic will be what you make of it, and there is something for everyone. I will divide the body of my analysis into four sections: (1) Topicality issues regarding specific definitions, (2) Generational interpretational issues, (3) Common affirmative positions on the topic, and (4) Common negative positions.
I.
TOPICALITY & DEFINITIONAL ANALYSIS:
1 Ought The most common definition of ought is that it is used to express duty or moral obligation. The implicit value is morality. This means that any attempt to evaluate the resolution from a purely legal perspective is non-topical, unless the position further demonstrates the law to be morally binding. Some are sure to argue that the invocation of the constitution means that the resolution is already telling us that we must evaluate the conflict through the lens of the constitution. But this is not so the whole point of morality is to arrive at abstract normative principles that can then be applied to particular situations. The word ought clearly indicates that the resolution is a question of morality, not constitutionality. Moral propositions are further divided into three parts: obligation, permissibility, and prohibition, where permissibility entails that an action is neither obligatory nor prohibited, but rather morally
3 3
Random House Dictionary
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optional. Since the aff must prove an obligation to affirm, permissibility is clearly neg ground. Moreover, since morality must exist for any moral obligations to exist, skepticism also negates, or at the very least, cannot be used to affirm. 2 Accused The main question here is whether accused means formally charged, or merely that one has been designated a terrorist by the US government. Accused can mean A formal criminal charge against a person alleged to have committed an offense punishable by law, which is presented before a court, or it can mean to find fault with; blame. The difference here is crucial. If we accept the former definition, then the debate centers on the court and trial process, including standards of evidence, the right to trial by jury, ones Miranda rights, etc. If we accept the latter definition, then we must also consider enhanced interrogation techniques, unreasonable search and seizure, and extrajudicial killings against individuals that are never charged in court. As there is a wealth of literature under both interpretations of the topic, this will probably be an issue that some negative debaters harp on to run T every round. 3 Constitutional due process protections Constitutional due process protections refers to the rights outlined in the U.S. Constitution and Bill of Rights. These include but are not limited to the right to trial by a jury of ones peers, the right to see the evidence presented against you, the right to a speedy and public trial, the right to an attorney, the right to see ones accusers, the right against unreasonable search and seizure, and the right against cruel and unusual punishment. The relevance of the latter two rights might be excluded by the former definition of accused that restricts the debate to individuals that are formally charged in court. Beyond the content of the rights themselves, there is a second issue worth discussing. Rights are generally conceived of as entitlements with built-in conditions. You have a right to life, until you try to murder someone, and then either the victim can kill you in self-defense or the government can murder you as punishment. You have an inalienable right to freedom of speech, until you incite criminal behavior. The point is that whether or not you can exercise a certain right in a certain situation has to do with whether the conditions built into the right itself are met. This is important, as it resolves the dilemma over whether the resolution is asking The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens [in general] Or The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens [accused of terrorism]. If the U.S. treats U.S. citizens differently when they are accused of terrorism, that just means that being accused of terrorism is itself a condition that limits ones ability to exercise
4 5 4 5
Legal Dictionary Random House Dictionary
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those rights. Hence, if the aff proves that non-citizens accused of terrorism ought to be treated the same as citizens accused of terrorism, they are also proving the more general statement that non-citizens accused of terrorism ought to be treated as citizens. This is because, supposing the U.S. currently does treat citizens accused of terrorism differently than citizens not accused of terrorism by withholding X rights, the U.S. would only be offering X rights to citizens conditioned on them not being accused of terrorists. Thus the aff burden would be to prove: the U.S. ought to grant X rights to non-citizens, conditioned on them not being accused of terrorism. Of course, in the context of the resolution, the condition has already been met, so in fact, the U.S. need not grant X rights to non-citizens accused of terrorism at all. Depending on whether X contains all constitutional rights, just a few, or is a null set, this analysis has the potential to seriously lower the affs burden to affirm. 4 Extend Extend is defined by World English Dictionary as to broaden the meaning or scope of. At first this definition may seem trivial. However, it does appear to suggest that the debate should center not on the content of the rights being discussed, but the scope of those rights. This will become important to the issue of whether the aff must defend granting non-citizen terrorists the same rights currently granted to citizens, or rights that ought to be granted to citizens. Specifically, the word extend seems to support the former interpretation, since the resolution is merely a question of extending what already is, not completely reforming rights into something that isnt.
II.
GENERAL INTERPRETATIONAL ISSUES
1 Status Quo vs. Moral Equivalence The foremost concern in interpreting the topic is deciding whether the resolution, as properly understood, reads:
Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it [currently] grants to citizens. OR Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it [ought to grant] to citizens. The issue is quite significant, and both interpretations have their benefits and drawbacks. The former interpretation grounds the resolution in a stable context, allowing for better discussion of
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the way the current system excludes or includes specific protections. Adding a time frame also makes it easier for people to debate the resolution from a consequentialist, policymaking perspective, because the context allows for better discussion of particular scenarios. The latter interpretation allows for more philosophically oriented debates by reducing the resolution to an abstract principle that is the core conflict of the resolution: whether citizenship merits differential treatment by a particular government. From a purely textual standpoint, both readings appear to be viable. The former interpretation may be supported by appealing to the present tense use of the word grants, which seems to suggest that we are comparing the rights we ought to grant to non-citizen accused terrorists to the rights we grant to citizens in the present. Further, one may argue that all propositions assume a background set of assumptions that one must accept to interpret them and that recognizing the status quo as the context is one such assumption. Imagine that you are at a restaurant, and ask for a cheeseburger with fries. Of course, you never explicitly say that you want the meal in the present, but it is assumed when you make the order that you do not want it delivered 10 years in the future, or to your past self the day before. Likewise, one may argue, we must assume the resolution refers to the status quo, absent reason to believe otherwise. The second interpretation, however, may also be reasonably defended from a textual standpoint. One may argue that the word ought carries over to modify the word grants, much like the statement I have more cake than you really means I have more cake than you have. In terms of ground, the most important argument that interacts with this interpretational debate is the generic due process bad negative. Under the former interpretation, the negative debater may simply argue that all due process rights are bad, so no one should get those rights, citizens or non-citizens. One might say that this is a benefit to the latter interpretation, since generic due process bad arguments side-step the major resolutional conflict and thus should be excluded from the discussion anyway. Under the latter interpretation, however, due process bad arguments not only dont negate; they actually affirm. This is because they show that non-citizens ought to get no due process protections, and that citizens also ought to get no due process protections. This is particularly problematic since due process good arguments also affirm, thus raising a fairness concern of whether the burden to affirm has been lowered too much. 2 Skepticism Affirms? The second interpretational issue involves a topic-specific argument for why skepticism affirms, one that was quite prevalent on the animal rights and juvenile felons topics, and one that is likely to make a comeback on this topic.
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Some affs will argue that skepticism affirms since it means (1) that morality doesnt require any protections for either citizens or non-citizens, which means (2) that morality requires the same protections for citizens and non-citizens, which means you affirm. There are two flaws with this argument. The first is that this argument relies upon a simple conflation of the relation between the normative concepts of obligation, permissibility, and prohibition. Obligation, permission, and prohibition are often understood as relational concepts: something is obligatory if not doing it is prohibited, something is permitted if it is not prohibited, and something is prohibited if it is not permissible. The argument supposes that if (1) it is false that morality requires different protections, then it must be true that (2) morality requires the same protections, in other words, it relies upon the idea that something is obligatory if not doing it is not obligatory. But this is a conflation of the real definition something is obligatory if not doing it is not permissible. The argument, therefore, fails, because it ignores the fact that both actions may be permissible, in which case you negate. The second problem with this argument for skepticism affirming is that it misunderstands the interaction between normative concepts like obligation and the skeptical position. The argument assumes that, if skepticism is true, one can still apply the traditional definitions of obligation, permission, and prohibition to normative logic. But this is not so. If skepticism is true, then the fact that it is false that action X is morally permissible does not mean that action X is prohibited, as would normally be true within a moral system. This is because skepticism entails the falsehood of all moral propositions.
III.
AFFIRMATIVE POSITIONS
1 The Nailbomb One of the most stock positions on both the juvenile felons topic and the animal rights topic was a nailbomb that gave the aff the burden to prove that there is no morally relevant distinction between the two groups involved (juveniles and adults, animals and humans, citizens and non-citizens). This position will no doubt make a resurgence on this topic. The argument may take several different forms. A. The case could argue that, in general, there is no morally relevant distinction between citizens and non-citizens, so you affirm under any ethical theory. In this case, the burden justifications would be reasons why, in general, there if there are no morally relevant distinctions between two actors, they ought to be treated the same. The contention would include generic reasons why citizenship is morally arbitrary, for example: geopolitical boundaries are the result of convenience or historical disputes, not the product of a
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morally deliberative process, so they are morally arbitrary. Thus citizens and non-citizens ought to be treated the same in all aspects and you affirm. B. The case could have the same burden as above, and then present a particular ethical theory, say, deontology, and argue that under that theory, there is no morally relevant distinction between citizens and non-citizens, so you affirm. No matter how the case is presented, however, the position remains fundamentally flawed. The first problem has to do with the burdens analysis, which purportedly demonstrates that if there is no morally relevant distinction between two subjects, they deserve equal treatment. A weak justification might appeal to intuition and the definition of morality as a non-arbitrary code of conduct. A stronger justification might appeal to the universalizability thesis of Richard Hares universal prescriptivism. Either way, the argument is flawed. To understand why, consider the following example. There is no morally relevant distinction between a blue pen and a red pen. This may mean that morality, as a system, may not arbitrarily differentiate between the two. But that does not mean that, if I bring my blue pen to work one day, I must bring along my red pen as well. Morality recognizes that there is no morally relevant distinction between blue and red pens by placing both actions (choosing blue over red vs. red over blue) in the realm of permissibility. Moral actors are then free to treat them differently even though there are no morally relevant distinctions between the two. Likewise, it may be the case that there is no morally relevant distinction between citizens and non-citizens, yet that does not prove that they ought to be treated the same. The second problem has to do with ambiguity regarding what a morally relevant distinction is. The resolution asks if there is an obligation for the U.S. to do a particular thing, i.e. to grant noncitizens accused of terrorism the same rights granted to citizens. This is a separate question from the question of moral status. For example, it seems that any agent-neutral ethical theory would be sufficient to fulfill the burden, even though those same theories might require a negation. Take utilitarianism, for example. Under utilitarianism, there is no morally relevant distinction between any person at all, citizen or non-citizen, terrorist or non-terrorist everyone counts as one, and no one counts as more than one. However, morally arbitrary circumstances that are the result of chance or bad luck like being stranded in a sinking lifeboat with 10 other people because there are too many people on it can obligate us to treat moral equals differently (one person is thrown overboard, while the others live). The nailbomb advocate will say that this misunderstands what a morally relevant distinction is; if something about someone that we thought was arbitrary affects how a moral theory mandates you act towards that person, then that circumstance (like you being on a life-boat), becomes
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morally relevant. But this only further muddies the issue. Now the aff burden is no longer there is no morally relevant distinction between citizens and non-citizens but rather there is no obligation to negate. Not only does this burden not affirm (it only proves permissibility, which negates), but it also just collapses into proving defense on all possible negative offense on the topic, including things that have nothing to do with morally relevant distinction. Indeed, even a disad or counterplan would be a morally relevant distinction under that interpretation of the burden. Both of these concerns I find to be devastating for the nailbomb AC. Despite its inevitable ubiquity on this topic, I strongly urge debaters not to pursue this type of position. 2 Due Process Good This case position, which argues that due process rights are important and thus ought to be granted to everyone, citizen and non-citizen alike, is likely to be just as stock as the nailbomb, though it is a significantly stronger position. The framework could be either generic reasons why due process are good (check back government power, prevent oppression, etc.) or a meta-ethically justified one, such as deontology or non-domination (see the works of Arthur Ripstein). These positions will have several advantages. First, they will benefit from a strong, well justified framework, which is probably more on the correct side of things than the nailbomb one. Second, the contention debate is made easy by the fact that there is no obvious, reliable method of achieving due process in the negative world. The ICC (International Criminal Court) and UN both have a rather poor track record of ensuring due process rights in the international arena. Thus, it seems that any risk that the Constitutional due process protections the affirmative is granting accused terrorists are morally good is sufficient to affirm, since there is little ground for the negative to argue that it achieves due process. These types of affirmatives, however, will be vulnerable to counterplans, such as those endorsing the ICC to try criminals instead. Moreover, PICs are likely to become a common strategy against these affirmatives. These PICs might choose just one or two rights, such as the right to a trial by the jury of ones peers, and argue that the accused terrorists should be granted all the other rights except the one specified by the PIC. Though such negative positions are probably unfair, the due process AC is particularly vulnerable to them when it comes to substance.
IV.
NEGATIVE POSITIONS
1 Social Contract This position is quite straightforward, and quite stock. All it says is that the social contract provides the basis for legitimizing state action, so the government is contractually bound to its own people in a way that it is not bound to foreigners. Because of the social contract,
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the U.S. government has no obligation to grant protections to non-citizens, and Constitutional rights do not apply to non-citizens, so you negate. 2 Contractarianism This position is also relatively straightforward, but it is substantially stronger than the social contract position because of its nuance. The framework would be contractarianism, the ethical theory of David Gauthier, presented in his book, Morals by Agreement. The framework starts from the premise of ethical egoism, which says that individuals are obligated to do what is in their rational self-interest, and then argues that the best way to achieve self-interest is by making mutual restraints on our self-interest as part of a mutually beneficial agreement. The framework may also include arguments for motivational internalism, the meta-ethical theory that reasons must be internally motivating to be normative (see Bernard Williams, Internal and External Reasons), to bolster it. The contention would then set out various preconditions to making a contractarian agreement, such being in an equal power relationship with the contractor, and explain why the U.S. governments relationship to terrorists violates that precondition, meaning that there can be no agreement restricting the governments self-interested action towards terrorists, so the government cannot be obligated to grant them due process rights.
CONCLUSION
The great breadth of philosophical, legal, and policymaking literature on the topic should make for some fantastic debates. Though the topic is narrower than previous ones, the inclusion of a specific context should allow for some more real world debates without deterring debates that involve applying abstract moral philosophies to the resolutions particular scenario. There are one or two thorny interpretational issues, and the nailbomb affirmative may at first sound sweet and simple dont follow the red herring. Stick to the positions that are logically sound not those that sound easy and you are far more likely to succeed.
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Topic Analysis by Dave McGinnis

Definitions and Significance of Terms
Ought Ought is one of the most common evaluative terms in LD debate, and the way you define it will help you to determine the value premise in the AC and NC. Ought is an auxiliary verb, which means that it works with another main verb to help contextualize the meaning of the verb in a sentence. That bit of grammatical knowledge probably wont help you in a debate. The most common definition of ought is some form of used to express duty or moral obligation, as in, You ought to look after your little brother. Another common definition that sometimes gets drummed up in debate is used to express probability or natural consequence, as in, Lotta clouds up there. It ought to rain soon. The first definition lends itself to a fairly straightforward normative debate about morals and ethics. The second definition can set the stage for a variety of non-normative debate frameworks. Based on my experience in rounds, youll see the moral obligation definition about nine times out of ten, and if you do see the natural consequence definition it is probably being used to set up some kind of descriptive framework -- one that says the resolution is true if the aff can prove that the U.S. is likely to extend due process rights to noncitizens accused of terrorists, and false if the U.S. is unlikely to do so. So definitely pay attention to this definition! Non-citizens The rules for who are and are not citizens are actually kind of complicated. The simple version of this is that there are two paths to citizenship: birth and naturalization. But even that gets a little complicated. All babies born in the US, the District of Columbia, Guam, Puerto Rico, the U.S. Virgin Islands and the Northern Mariana Islands are U.S. citizens -- unless they are born to citizens of enemy countries during wartime or to serving foreign diplomats. Congress establishes rules for naturalization of non-citizens seeking citizenship and at the end of that process those folks become naturalized citizens, which entitles them to almost all of the benefits and obligations of citizenship, with notable exceptions (i.e., they cant be President.) There are some fairly complicated rules about citizenship for people born outside of the U.S. to one or more U.S. citizen parents, and those rules are even more complex if the parents in question are not legally married. In the majority of rounds, this stuff probably wont matter. Both debaters will likely concede that citizenship status is more or less easily verifiable and that there are static groups of citizens and non-citizens, and the debate will proceed from there. However, citizenship is a concept that can
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be dug into, so dont be surprised if you see people complicating and/or critiquing the concept to generate a variety of novel arguments on either side. Accused There are two meanings of accused that have very different implications for the topic. The first meaning is general: someone is accused if they are suspected or alleged to have done a crime. The second meaning is legal: someone is accused legally if the government asserts that they have committed a crime. Of course, that someone is accused does not mean that they are guilty of a crime or other bad act. Affirmatives should stress this: many negative positions will argue that we should treat terrorists differently because of the nature of terrorism, but the resolution doesnt refer to terrorists, it refers to people accused of terrorism. The most basic argument in favor of due process is that in order to check the governments power to oppress unpopular groups or opinions, we have to have a legitimate process in place to establish the actual guilt of the accused before we punish them. In a very real sense we dont know that someone is guilty of a crime until after its been proven through due process.
Terrorism The dictionary definition of terrorism is roughly, using violence and threats to achieve a political goal. One important part of the debate over terrorism and due process is whether terrorism is a crime or an act of war. Part of the justification that the Bush administration offered for treating terrorists differently and specifically for not giving them due process rights was that terrorists are not criminals but enemy combatants, identical to soldiers fighting for an enemy army in war. The Bush administration further argued that terrorists were unlawful combatants, and therefore not subject to the Geneva conventions, either. If the negative successfully defends either of those points -- that terrorists are enemy combatants or unlawful combatants -- that would probably be sufficient to negate because in either case, due process as generally applied to US citizens would not be required. Same Same means identical, and this will be the source of a common, but troubling, negative strategy. I expect that negative debaters will assert that affirmatives have the burden of justifying that every single due process constraint that applies to US citizens should also apply to accused terrorists and in the same way. Negatives will then pick specific due process constraints and argue that these shouldnt apply to terror accusees, or shouldnt apply identically. For instance, negatives might argue that the right of discovery (the defenses right to see all of the prosecutions evidence against the accused) would require the disclosure of national security secrets. The negative could argue that terrorists should have all of the same due process rights as citizens (thus co-opting the
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vast majority of the aff ground) but that the right of discovery ought to be limited so as to protect national security secrets. This is just one example -- given the wide variety of procedural rules that govern criminal trials in the US, there is a vast array of possibilities for similar negative strategies. There are two approaches negatives might take to this kind of strategy. The first, described above, would be to concede that non-citizen terror suspects should get all of the same due process protections as citizens, except the one specified in the NC. The strategic value of that position would be to narrow the debate down to the single due process constraint that the negative wants to criticize. This would obviate all or most of the AC while allowing the negative to focus the debate on the particular due process issue that (A) the negative is most prepared to debate and (B) is the least defensible by the affirmative. Those are all also reasons why the strategy is theoretically problematic, and debaters who know how to run theory, and who debate in regions where theory is accepted, should consider preparing to object on those grounds. The second approach a negative might take would be to focus on a single due process constraint and argue that following that constraint would be a huge problem, but still defend the entirety of the resolution. The benefit to the negative would be to avoid becoming embroiled in the theoretical debate, but still to have access to ground derived from discussion of a specific due process constraint, rather than due process generally. Another pesky interpretive question surrounding the term same is this: to what does that term refer? Same is a comparative term, so the debate is over whether the same due process rights should be acknowledged for two groups. The question is, what two groups? On the one hand, its clear that the first group is non-citizens accused of terrorism. The second group is identified in the resolution as citizens. That could mean one of two things: it could mean U.S. citizens generally -- just average people accused of generic crimes. Or it could mean U.S. citizens accused of terrorism, which complicates matters and opens up additional possibilities and challenges. For example, if the resolution is interpreted as, Resolved: the U.S. ought to provide the same due process protections to non-citizens accused of terrorism as it does to citizens accused of terrorism, then the affirmative could advocate that both non-citizens and citizens accused of terrorism should be provided limited due process. Under this interpretation and advocacy, the Affs positions would resemble what might more commonly be considered negative ground, specifically that it is a good idea to deny some or all due process to accused terrorists. This strategy is not available to the affirmative if the resolution is interpreted to be about U.S. citizens
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generally, because its probably not tenable to argue that U.S. citizens should be denied due process regardless of the nature of the crime they are accused of. Sameness also forms the basis for what will probably be a key affirmative strategy. Debaters that want to have utilitarian debates (debates about the aggregate benefits of providing particular due process rights to terror suspects) will want to focus on the implications of particular due process constraints. This might take the form of policy-style advantages and disadvantages stemming from specific elements of due process, or it might be a more LD-style general argument that due process creates benefits or harms. On the other hand, debaters who take a more deontological approach might want to focus on sameness -- that is, arguing that the resolution is true if there are no morally relevant distinctions separating non-citizen terror suspects from citizens. If the affirmative justifies a deontological criterion or framework, they could exclude all discussion of the harms of particular due process rights by focusing the debate on whether there is a moral justification for differentiating between citizens and non-citizens (or terror suspects and other kinds of suspects). This could also be a negative approach -- to argue that there are relevant differences between citizens and non-citizens that justify or require different treatment. Due process Due process in the U.S. federal system is derived from the 5th and 14th amendments to the U.S. Constitution, and is usually divided into categories including substantive due process and procedural due process. Substantive due process has to do with courts establishing limits on the scope of the governments power to make laws limiting freedom. Procedural due process is the kind of due process people are usually talking about when they talk about criminal adjudication -Law and Order due process, if you will. One important note is that few if any specific due process practices are articulated in the Constitution. Rather, the Constitution simply says that the state must provide due process generally. Subsequent case law has established the specific legal practices that constitute due process. These provisions are constitutional in the sense that they are understood to be rooted in the constitutional due process requirements, but someone might try to define constitutional as explicitly articulated in the constitution. This would narrow the discussion significantly. Since the resolution is talking about the extension of due process protections to individuals accused of terrorism, most of the good impact-bearing ground is probably going to focus on procedural due process. That doesnt, however, mean that you couldnt make a good argument
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for the aff regarding substantive due process. You could argue, for example, that courts ought to strike down laws that the government might pass allowing for indefinite detention. Due process in the procedural sense is a collection of legal requirements that pose legal hurdles to the governments ability to convict and punish a person accused of a crime. The law regarding federal due process is really complicated, and there are a lot of individual rules. The general idea behind due process is that because the government is the most powerful actor in the legal realm, and because those who framed the Constitution were mindful of the possibility of government power becoming corrupted and being used to oppress, the governments ability to prosecute and punish had to be restricted. Due process is there to ensure that the government must meet a high standard of proof before they can use state power to deny someone of their liberty and other rights, and that the question of whether theyve met that bar should be judged by neutral parties who are not government agents. Some specific due process provisions follow, along with some argument ideas that might be associated with them under this topic: Right to a trial by jury: The negative might argue that providing terror suspects with a public jury trial risks national security by potentially exposing state secrets relating to the investigation of terror networks and the prosecution of the war on terror. the affirmative, on the other hand, might argue that the right to a jury trial is a necessary check to ensure that representatives of the state arent using the machinery of the criminal justice system to railroad unpopular individuals into prison or otherwise detention. Right to a speedy trial: Since the terror attacks on September 11, 2001, the U.S. has made a fairly regular practice of imprisoning suspected terrorists for long periods of time without charge, trial, access to a lawyer, or any other rights. The negative might justify this by arguing that investigation of terrorism requires a great deal of time and involves the gathering of intelligence in foreign countries, Right to a public trial, right to present evidence, right to discovery and right to cross-examine witnesses A number of due process requirements seem aimed at preventing the government from presenting faulty evidence by making the evidence publicly available and ensuring that the defense has access to it. One common concern regarding terrorism cases is that the evidence involved often incorporates sensitive national intelligence information. For example, eyewitness testimony might come from an intelligence asset or informant whose identity is secret. Revealing
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that information in court could (A) endanger the life of the informant, (B) prevent that informant from gathering valuable intelligence in the future, and (C) reduce the governments ability to recruit informants in the future, as they would be frightened by the possibility of eventually being required to testify in court. Rules of evidence, i.e. hearsay Rules of evidence are designed to ensure that the evidence presented at trial is valid and authentic. But in the case of a terrorism trial, particularly where the defendant was extradited from a foreign country, meeting all of the standards of evidence might be very difficult. Collecting evidence, obtaining first-hand witness testimony, etc. are all more difficult if the crime you are trying took place thousands of miles and an ocean away. Requiring the prosecution to adhere faithfully to all of the rules of evidence might simply make terror trials impossible.
Stock Affirmative Approaches
Contractualism A contractualist affirmative will be pretty popular. Contractualism holds that our ethical obligations can be derived by a thought experiment that asks, what practice or policy would a reasonable person willingly subject themselves to, ex ante? The affirmative argument from contractualism would hold that since accusation is a very low bar (i.e., an accusation by itself requires little or no proof) any person might find themselves accused of terrorist activities regardless of whether they had actually committed a terrorist act. Due process guarantees (or comes as close as possible to a guarantee) that a person accused of terrorist acts wont be subjected to punishment unless he or she actually committed the acts. Since someone guilty of terrorist acts cannot reasonably reject being subject to punishment for those acts, and since someone innocent of such acts could reasonably reject being subject to punishment, a system which maximizes protection from undue punishment while seeking to guarantee due punishment would not be reasonably rejected. A system that facilitates punishing the innocent (by reducing the governments burden of proof in terror cases) could be reasonably rejected. These kinds of arguments have been pretty popular over the past few years because they alleviate the affirmative of the burden of establishing some ethically realist position (i.e., that ethical statements are true in the same sense that scientific statements are true). This makes it easier for the affirmative to link out of moral skepticism negatives, because the source of the ethical obligation is human agreement (reasonable, in the case of contractualism) rather than some natural fact.
12NFL1-Terrorism Due Process www.victorybriefs.com Generic arguments in favor of due process
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Due process is a pretty intuitively good idea, and our preference for due process as a constraint on government power is rooted deeply in the culture. It will be fairly common to see affirmative positions based on the common arguments in favor of due process, combined with the argument that these basic justifications -- that the augur against the states arbitrary use of its authority to oppress -- apply as well to non-citizens as they do to citizens. Practical arguments in favor of due process The most common arguments in favor of due process are more or less deontological in the sense that they argue either that due process is a government obligation either because individuals deserve it intrinsically or that it is necessary to protect substantive rights. There are a number of arguments that defend due process on more practical grounds. You might argue, for instance, that due process constraints are valuable because they give investigators an incentive to carefully put together cases that will hold up in court, increasing the likelihood that the correct person will be caught. Absent due process constraints, police or other authorities are free to conduct sloppy investigations because they can get away with practices that yield unreliable evidence. Or, given the nature of the topic, a state unconstrained by due process could simply detain as many terror suspects as it wants indefinitely and without charge. This kind of behavior would create a number of practical problems. It increases the likelihood that innocent people are punished and that guilty people go free, which means that the executive authority of the state would not be fulfilling its most basic purpose of protection. Too, the state would be wasting resources incarcerating people who pose no threat. Further, the U.S. pays a political price for its failure to provide due process: abuses at Guantanamo Bay and elsewhere have served as rallying cries for those recruiting additional terrorists. The general sense that the U.S. supports rights and democracy in name only, but is willing to sacrifice these values whenever expedient, creates a variety of problems. It impedes our ability to export democracy, makes it harder to form international coalitions, reduces our soft power, and makes it easier for our enemies to recruit. One very concrete practical problem with our refusal to provide due process rights is that it may make it difficult or impossible for us to extradite non-citizen terrorists from other countries. Some nations may refuse to transfer custody of terror suspects to us if they are not confident that the suspects will be well-treated. Since terror suspects are likely to be caught abroad, this could be a significant impediment to our efforts to fight terrorism.
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Any of these arguments could be used as a link into a policy-style advantage scenario. These types of arguments will begin with a more-or-less straightforward link associated with due process rights, but will terminate in a big impact like nuclear war. For instance, a policy-oriented debater might run a soft power advantage stating that the U.S. ability to maintain hegemony is predicated on our ability to establish soft power relationships -- relationships based on positive respect rather than fear of our military power -- and that being in line with international norms on human rights and due process is key to maintaining soft power. In turn, soft power (they might argue) is key to preventing the escalation of internecine conflicts which would escalate to nuclear war. Im not personally a big fan or advocate of the big impact scenario in LD, though these kinds of links are the norm in policy, so I cant vouch for that particular argument being a good example of a policy-style advantage, but you get the general drift. Cosmopolitanism Cosmopolitanism is the idea that as our world becomes more connected economically, socially, and politically, the political and legal relevance of borders becomes (or ought to become) less. The most common approach to cosmopolitanism is based on the observation that ones place of birth is arbitrary, a result of the lottery of birth, and that therefore important determinations (such as what due process rights one enjoys) ought not to be based on this. Given the interpretation of the resolution that the affirmative is defending that non-citizen terror suspects ought to be given the same due process as citizen terror suspects, its fair for the aff to say that the only difference between the two groups of terror suspects under consideration would be their citizenship status. Thus the reduction of due process rights defended on the neg would be based solely on place of birth. A successful defense of the cosmopolitan position would therefore affirm.
Stock Negative Positions
Social Contract This is the opposite of cosmopolitanism on the affirmative. Negatives can argue that the social contract creates special obligations between a state and its citizens. The citizen-state relationship is reciprocal and special. It doesnt exist between the state and all the world; rather, it exists only between the citizens and the state. The citizens owe allegiance to the state where non-citizens do not; the citizens pay taxes, vote, etc. Also, the citizens are bound by laws in ways that noncitizens are not. (Actually, thats really not true but people will say it is.) Thus, the states obligations vis a vis the law are specifically to citizens, and while it is probably good for the state to extend some courtesies to non-citizens, the state is not obligated to provide non-citizens with the constitutional protections that are owed specifically to citizens.
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More Due Process or Different Due Process One thing negatives often try to do is to run to the left of a liberally worded topic. Rather than defend what they might perceive as an untenably conservative position (that non-citizens dont deserve rights), the negative might try to argue either that non-citizens accused of terrorism deserve more due process rights than citizens, or that they deserve different due process rights. The negative might advocate that since terrorism invites particularly severe punishment, and because there is a strong political incentive to not only prosecute but persecute suspected terrorists, there should be additional due process steps to ensure that terror prosecutions arent being used as political tools. Or, the negative might advocate something more specific, for instance that the U.S. ought to submit non-citizen terror suspects to some international court, such as the I.C.C. A number of advantages might accrue: soft power, more balanced and fair trials, or even a strengthening the court advantage. Earlier in the article I mentioned the likelihood that negatives will run plan inclusive counterplans. The more/different due process position could take that form. The negative might identify a specific due process constraint that applies in one way to citizens and argue that it ought to apply differently to non-citizens accused of terrorism, or they might advocate a specific element of due process that ought to be added in the case of non-citizens accused of terrorism. The strategy behind these advocacies will be to narrow the ground of the debate to a very specific issue that (A) is the negatives preferred ground (because it is something intuitively appealing) and (B) the negative is more well-prepared to debate. Military Tribunals This is the most stock example of the negative world in the literature, and there are a number of conservative commentators who defend military tribunals in the lit. These offer reduced due process protections that are designed specifically to try cases involving sensitive national security issues. They provide the benefit of a specific enforceable process (rather than indefinite detention without charge) and the ability to tailor the process to ensure that national secrets arent revealed (for instance, the identities of confidential informants in terror organizations.) Practical Problems with Same Due Process There are a number of general practical problems with giving non-citizens accused of terrorism that the negative might advocate either in a traditional LD-style position with a utilitarian criterion,
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or as links into a policy-style disadvantage. Ive already discussed several of these: the neg might argue that giving non-citizens accused of terrorism the right to confront witnesses against them or the right of discovery could place the U.S. at risk from other terrorists because the information that would have to be revealed publicly would constitute vital state secrets. We would either have to reveal the vital secrets or let the terrorist go, either of which places the U.S. at risk. The neg might argue that giving full due process rights to non-citizens accused of terrorism would cause court clog -- that is, it would overburden the courts by giving them too many cases to deal with at one time. Terrorism is Different Several authors argue that terrorism is different from normal crime because the terrorist is a combatant rather than a criminal and seeks to destroy the U.S. rather than just seeking some sort of advantage through crime. Given this difference, the state doesnt owe due process in the same way because the terrorist is a threat to the existence of the state rather than a reciprocal participant in the state who has simply deviated from its norms.
Squirrelly Positions
Common squirrelly negative positions will try to prove that the resolution isnt or cant be true without actually engaging in substantive debate on the core questions of the topic. I expect that two such common strategies on this topic will be generic skepticism and the old states arent moral actors argument. Skepticism, discussed briefly above, is simply an argument about moral epistemology that says that moral statements dont have truth value and thus cant be proven. There are a number of authors who defend a variety of forms of this argument. As you construct an affirmative position, give some thought to moral epistemology -- that is, under your interpretation of the resolution and of ethics, what does it mean for something to be true in the moral sense. As mentioned above, a contractualist or contractarian argument can help you get around the skeptical challenge because it provides a specific and contextual definition of what a moral truth is and how it is arrived at. If you are running a deontological position, make sure you can explain how the moral truths embedded in it are derived. Kants categorical imperative, for instance, provides a reasonably consistent line of reasoning that explains how we arrive at moral truths with only the natural world and reason as reference points.
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If your opponent runs skeptical arguments they will (A) embed them in complex language and (B) assume that youll be put off by the argument. Dont fall for these traps. Skepticism may be grounded in some complex philosophical arguments but as a debate strategy, it is fairly simple. Also, skepticism negates is a negative existential claim -- that is, it requires the negative to prove that there is no grounding in reality for ethics. Theres no way that argument can be fully proven because theres no way to preemptively disprove every possible grounding of ethics. If you win your framework you can leverage it as defense against skepticism unless the skeptical argument of the negative directly refutes your ethical argument. The argument that states lack moral agency is an interesting carry-over from the 2007 corporations topic. States, like corporations, are sometimes treated legally as though they were fictional persons -- that is, in their interactions with the law, they are treated as though they have some of the characteristics of persons. The negative will argue (correctly) that this fictional person isnt really a person; the state, as it were, doesnt have a brain or consciousness or conscience, and as such it lacks the characteristics necessary to be a moral agent. This argument is true but trivial. I would recommend preempting this in the AC through your explanation of what U.S. means. The simplest argument is that the U.S. isnt a monolithic fictional person, but rather an aggregation of individuals, and all actions taken by the U.S. are actually taken by individual people, all of whom have obligations. Or, you can concede that the U.S. is a corporate entity and argue that its ethical obligations are structure contractually, so that states are moral actors only in the sense that they are obligated to fulfill their constitutional roles. The whole states arent moral actors thing breaks down to a silly semantic argument at the end of the day. Certainly if we really felt that states had no ethical obligations or mooring in some conception of the right or the good, that would be a terrible thing. If the U.S. government (through its agents) were to attack innocent countries, assassinate its own citizens extra-judiciously, or commit genocide, we would intuitively think that this was not just bad (in the way a tornado is bad) but also wrong in an ethical sense. It cannot be the case that states are not bound by any moral obligations because it is obviously true that states are capable of doing immoral things that (A) they oughtnt do and (B) they ought be punished for when they do them. One simple but bad argument negatives might make is that non-citizen terror suspects cant be given a jury of their peers, which is a due process right guaranteed to U.S. citizens. The bad version of this argument would say that non-citizens peers would also have to be non-citizens, and since we cant empanel a jury of non-citizens in the U.S., we oughtnt to give this right to noncitizens accused of terrorism. The very bad version of this argument would be that terrorists
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peers would also have to be terrorists (yikes!). Both of these are awful, awful arguments but I have seen far worse so expect to have to deal with this at some point.
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Topic Analysis by Fritz Pielstick

Before I begin, I want to establish two things:
(1) Dont read the Terror Talk K. Just dont. Its a bad argument and its run too much. (2) There is Hamdi v. Rumsfeld and there is Hamdan v. Rumsfeld. They are two different Supreme Court cases, both relating two how terror suspects are treated. You will probably come across both of them when researching the topic, because I did. I will talk about them later, but in case you skip that part, I want you to be cognizant of the fact that they are two different things.
Now to discuss the topic more exhaustively:
A Few Words about Words
This topic is worded poorly. In the interest of precision, it should probably read something like The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens accused of terrorism. Why? Because the United States grants a great deal of due process protections to citizens, and the vast majority of those due process protections are totally inapplicable to terror policy. I dont expect that debaters will exploit this flaw in the topic wording to their own advantage, because I think most debaters are decent human beings. However, it does put debaters in a situation where they have to debate what the topic is implicitly assumed to mean, rather than what it literally means. Get your T-blocks and 1AR theory ready in case rogue debaters decide to breach that implicit contract and enter the debate of nature.
Abstractly speaking, the topic shall be a discussion over whether or not there should be differences in how citizens and non-citizens, each accused of terrorism, ought to be treated.
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Debaters may be tempted to advocate that the statuses of how citizens and non-citizens are treated ought to both be changed, respectively, to meet some other standard (i.e. Plan: Give both citizens and non-citizens ________ constitutional due process rights that currently dont exist for either one of them). The topicality of this is questionable at best. The first to in the resolution refers to non-citizens, indicating they are the only subjects who will be affected by the creation of the affirmative world. More importantly, the resolution asks the affirmative to defend that the United States ought to extend to non-citizens the same constitutional due process protections it grants to citizens. It grants is present-tense, which means the resolution wants the affirmative to alter how non-citizens are treated so that it is the same as how citizens are presently treated. If the resolution permitted or the affirmative to change how both citizens and non-citizens are treated, it would read something like The United States ought to afford the same constitutional due process protections to citizens and non-citizens.
Background: How Are Non-Citizens Accused of Terrorism Treated?
In shortpoorly. But citizens arent too much better off. There has been a recent trend of limiting the scope of due process protections for citizens and non-citizens alike. The National Defense Authorization Act of 2012 (passed after this resolution was written) and the post-9/11 counterterror policies of the Bush Administration (passed well before this resolution was written) have eroded the due process protections afforded even to citizens of the United States who are accused of terrorism. The NDAA is an annual defense spending bill that determines how much money we spend on defense (makes sense, right?). In 2012, however, new provisions were tacked onto the NDAA for the Fiscal Year 2012 that allowed the government to indefinitely detain American citizens accused of terrorism. This section of the NDAA 2012 affirmed a joint resolution passed by congress three days after the 9/11 attacks called the Authorization for Use of Military Force, which authorized all necessary and appropriate force in the effort to defeat the perpetrators of the attacks. It was ruled unconstitutional by a federal judge in May, and the federal government is appealing.
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The reason all of this is important is that the resolution specifies constitutional due process protections, meaning the due process protections that are afforded under the United States constitution. If the constitutionality of NDAA 2012 is in limbo, then the due process protections granted to non-citizens under it (or lack thereof) are also in limbo in terms of their relevance to the topic. NDAA 2012 closed the gap in terms of which constitutional due process protections are afforded to citizens and non-citizens, respectively. It closed the gap by taking away rights from the group that had them, rather than granting them to the group that did not, but it did close the gap. This is not meant to rant about NDAA 2012 (Ill save my ranting for the internet), but it is meant to highlight how the scope of what this topic is about has changed since it was written. I think that originally the topic was meant to foster a debate about whether or not non-citizens should be guaranteed habeas corpus rights, among other due process protections. But NDAA 2012 has made this irrelevant, since even citizens arent guaranteed those rights under its provisions. If that provision of NDAA 2012 is ruled unconstitutional, however, then the right to habeas corpus still stands as a constitutional due process protection granted to citizens accused of terrorism. If it is ruled constitutional, then habeas corpus rights dont extend to citizens, let alone non-citizens accused of terrorism (perhaps in accordance with war-making powers). How needlessly confounding it is that the constitutionality of it is being sorted out by people with a better grasp of constitutional law than me!
Speaking of court decisions regarding treatment of terror suspects, its worth talking about Hamdan v. Rumsfeld and Hamdi v. Rumsfeld. As I said before, they are two completely different court cases whose semantic similarity further obfuscates the dense legalese of this topic.
Well start with Hamdi, since it happened first.
In the wake of the 9/11 attacks, Decider Bush decided to label people accused of Al-Qaeda or Taliban-related terrorist activities as enemy combatants in order to semantically absolve his
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administration of any legal obligation to adhere to inconvenient documents like the Geneva Convention. In the Bushian language, enemy combatants are a sort of unlawful combatant whose status precludes them from being subject to the Geneva Conventions requirements for treatment of prisoners of war. In 2001, a young man named Yaser Esam Hamdi was captured in Afghanistan and labeled as an enemy combatant. Though raised in Saudi Arabia, Hamdi was born in Baton Rouge, Louisiana, and was therefore a United States citizen. He was detained at Guantanamo Bay, and transferred around to various other detainment facilities. Hamdis father sued on his behalf, filing a habeas petition. The case eventually went to the Supreme Court, who ruled that enemy combatants who are U.S. citizens have the legal right to challenge their detention.
Now for Hamdan.
Salim Ahmed Hamdan, a citizen of Yemen, was Osama Bin Ladens chauffeur. He was captured in Afghanistan and sent to Guantanamo Bay. He was set to be tried in front of a military commission. Hamdan filed a petition for a writ of habeas corpus, claiming that trying him in front of a military commission was illegal under the Geneva Convention and the United States Uniform Code of Military Justice. As he was not a United States citizen, he was eligible for enemy combatant status under the precedent set by Hamdi v. Rumsfeld. The Supreme Court ultimately ruled that trying him in a military commission was illegal.
So, they are two different court cases with similar names, both relevant to the topic. Research them, and know the difference. Continuing background research on this topic will give you a better idea what the aff and neg are actually defending, respectively. Knowing about NDAA 2012 as well as the Supreme Court cases regarding the treatment of non-citizens accused of terrorism will clarify what is aff ground and what is neg ground, which is pretty important.
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Finally, I want to discuss extraordinary rendition, because that is another method the United States uses to detain non-citizens accused of terrorism. Under this practice, terror suspects are captured and are extradited to foreign jurisdictions where they are interrogated and often held indefinitely. Another term for this practice is torture by proxy, since it is widely speculated, and sometimes confirmed, that these suspects are tortured in these overseas locations. Both sides should be aware of this practice, because it constitutes the status quo treatment of some noncitizens accused of terrorism by the United States.
Ugh, Im Bored, Fritz. Just Tell Me Which Arguments I Can Run. Thats Why Im Reading This.
The previous section was designed to give a brief outline of the legal background of this topic. This topic gives lots of room to make arguments about things going boom and the extinction of all of the things, which is fun for debaters, but it is still a legal topic at its core. Understanding what youre debating about is important. While I think it is poorly worded, and some of the legalese in the topic literature is a little too dense for younger debaters (and, apparently, fourth-year-out college student judge/coaches), the major redeeming quality of the topic is the wide array of arguments it allows.
In terms of affirmative arguments, there is some ground for utilitarian arguments. Util aff ground probably lends itself well to plan texts, which I will discuss shortly. Util neg ground is tremendous. Obviously, there are tons of disadvantage scenarios for the neg. Im sure debaters will find creative ways to prove that giving more due process rights to non-citizens accused of terrorism will cause lots of people to die. The usefulness of indefinite detention and so-called enhanced interrogation techniques in fighting terrorism will likely become an important aspect of this topic. This topic could probably spur a halfway-decent soft-power-versus-hard-power debate. Its also
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an election year, which means that there are tons of elections disadvantage and politics disadvantage scenarios for debaters who like to go hard in the util paint.
The reason there will be lots of room for disads is that there is a lot of room for plan-text affirmatives. The topic has the odd quality of being both very specific and very vague at the same time. It very clearly prescribes a policy action to be taken by an actor (the United States government) but leaves open myriad ways to place parameters on the scope of that action. Thats a fancy way of saying there are a lot of topical plans the aff can read. The fact that there are so many different plans means that debaters will probably find strategic advantage in reading them, since there wont be specific answers to their plan. So, cut a lot of case negatives against plans, or prepare to engage them on the framework level. Or be prepared to become intimate with your plans bad shell.
(As a quick aside on plans, if you are planning (pun sort of intended) to run something even remotely related to NDAA 2012, be clear to distinguish between NDAA 2012 and the NDAA in general. As I mentioned before, NDAA is a yearly spending bill that basically establishes our defense budget. The NDAA bill that got civil libertarians all riled up last year was NDAA 2012, and more specifically two sub-sections within NDAA 2012.)
But, this topic is not just a util-friendly topic. There is plenty of room for more nuanced philosophical positions, as well. Its debatable whether or not due process protections, which are designed to prevent abuses of power by governments, apply only to people who fall under the jurisdiction of that government, or extend to anyone who can be abused by that government. And by its debatable, I mean that the aff and the neg can both make arguments about that. Since the resolution is a question of constitutional due process protections, philosophy regarding who should and should not be protected by the restraints of a contract is going to be integral. A stock neg that comes to mind might say that a government has no positive obligation to extend due process protections to people who fall outside the purview of their control. Ive also considered
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the possibility of reading arguments, particularly on the affirmative, about the arbitrariness of borders, and the arbitrariness of distinctions between citizens and non-citizens. Eschewing the practical implications of the resolution entirely, you could probably affirm by simply proving that there are no relevant moral distinctions between citizens and non-citizens that warrant different treatment.
As always, there is room for some more creative and non-stock approaches as well. There is a vast array of critical literature that would be applicable to United States counter-terror policy. The usual policy backfile-sourced arsenal of threat construction, terror talk, securitization, and other similar kritikal positions will probably snake its way into the topic. I dont particularly like these arguments, but no one can stop you from running them, and they will probably apply. Giorgio Agamben probably has some things to say about counter-terror policy. I will freely admit that critical literature is not something of which I have a bastion of knowledge, but I do know that there is a diverse range of critical authors, whose philosophy criticizes the implications and exercise of governmental authority, and will therefore jibe well with this topic. Lastly, the topic is rife with historical examples of horrifying mistreatment of terror suspects in the hands of the United States, any one of which could serve as a potential narrative, if thats your cup of tea.
To conclude, this topic is flawed in its wording and dense in its literature base. However, it does allow for an abundance of good, topical arguments. Shockingly, debaters who research the topic well and know its nuances will win the most rounds. Since there are so many strategies and approaches to affirming and negating, being prepared to debate widely different strategies (philosophy-based, policy-based, kritik-based etc.) is a good idea.
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Topic Analysis by Liz Scoggin

First, this is an absolutely enormous topic. Definitional quibbles could take up the entire debate. Debaters need to sit down and seriously consider their definitions, otherwise the debate will devolve into one mans terrorist is another mans freedom fighter! While what constitutes terrorism is an interesting question, it wont ultimately resolve the debate in either the affirmative or negatives favor. Second, there is a lot of law on this topic. The U.S. Supreme Court has dealt with this issue a good number of times, particularly in reference to the detainees at Guantanamo Bay (known colloquially as Gitmo). Debaters should read the relevant case law to make sure they at a minimum have a handle on the arguments the Justices are making. Gitmo isnt the only place where the United States holds accused terrorists, but it is probably the most visible one. There is a ton of literature on Gitmo and the resulting Supreme Court decisions. Id recommend debaters start there. Finally, debaters need to know the differences between particular classes of accused terrorists. There are non-citizens on foreign soil who cant be detained, there are non-citizens who are currently detained in a large network of U.S. run prisons across the globe (like Guantanamo Bay), there are non-citizens who are detained on U.S. soil. There are also non-citizens who plan to directly commit terrorist acts, non-citizens who fund terrorist acts, or non-citizens who are even more peripherally involved in acts of terrorism. These groups of non-citizens all pose different concerns for the debate. For example, the right of habeas corpus might be a concern for Guantanamo Bay detainees, while predator drone strikes might be a concern for accused terrorists in Yemen. Both issues raise questions of due process but might have dramatically different consequences. Personally, I would prefer debaters focus on one particular group of terrorists and tell me what rights the United States should give them. However, debaters who prefer a broader debate should at least be aware of the fact that non-citizens accused of terrorism are all in dramatically different positions. I. DEFINITIONS A. Non-citizen
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6 I suggest reading Blank Spots on the Map: The Dark Geography of the Pentagons Secret World by Trevor Paglen for an interesting look at the covert spaces the United States uses to detain accused terrorists. 7 Wikileaks released an enormous amount of information about the detainees at Guantanamo Bay. The New York Times catalogued most of this information at http://www.nytimes.com/2011/04/25/world/guantanamo-files-lives-in-an-americanlimbo.html.
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When defining non-citizen, debaters should decide whether they want a broader or narrower definition. Affirmative debaters who want to extend protections to non-citizens will likely want a definition that is exclusively based on geography. Negative debaters will likely want a definition that includes both geography and some additional characteristics, like allegiance to the state or participation in the democratic process. Merriam Webster illustrates the two types of definitions. It defines citizen as a member of a state and also as a native or naturalized person who owes allegiance to a government and is entitled to protection from it. Because the agent in the resolution is the United States, debaters might want to select a U.S.specific definition. The 14 Amendment provides that, [a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
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Debaters should not only provide a definition, but emphasize the importance of that definition. There are two main principles of nationality law- jus sanguinis (right of blood) and jus soli (right of soil). The principle of jus sanguinis means that citizenship rights are passed by the parents. If one or both of the parents are citizens, the child will also be a citizen. The principle of jus soli distributes rights based on place of birth. Even if the parent is not a citizen, rights are given to any person born on that countrys soil. Some countries, like the United States, have a mixed system. Debaters should ask themselves what the principles underlying these two systems are. Why does it make sense to provide rights based on geographic location? Or blood line? Fundamentally, the resolution asks why citizens and non-citizens should be treated differently. In my opinion, this is the most important definitional question to answer in the resolution. B. Terrorism First, the resolution only says that the non-citizen has been accused of terrorism. Be sure not to structure your case as though the accused is actually guilty of their crime. Although there have been several trials by military commission, only one Guantanamo bay detainee has actually been convicted of anything in U.S. federal courts. Cases that are premised on retribution or fair punishment could run into trouble given the wording of the resolution. The United States has multiple definitions of terrorism. 18 U.S.C. 2331 defines international terrorism as any activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or any State, or that would be a criminal
U.S. Const., amend. XIV, 1. Ahmed Khalfan Ghailani was sentenced to life in prison for his role in the 1998 bombings of two U.S. Embassies in Nairobi and Dar-Es-Salaam.
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violation if committed within the jurisdiction of the United States or of any State that appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion or affect the conduct of a government by mass destruction, assassination, or kidnapping and occur primarily outride of the jurisdiction of the United States. Domestic terrorism has similar standards, but the activities take place primarily within the jurisdiction of the United States. The FBI defines terrorism as the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives. The Department of Defense defines terrorism as the unlawful use of- or threatened use of- force or violence against individuals or property to coerce or intimidate governments or societies, often to achieve political, religious or ideological objectives. Each of these definitions highlights different aspects of terrorism. The United States Code definition is very inclusive, while the FBI underlines the political nature of terrorism. Obviously, each agency chooses a definition based on their particular goals and objectives. Debaters should also choose their definitions carefully. The affirmative can take two approaches to defining terrorism. It can either be very broad so it can extend rights to as many people as possible, or narrow. I think the unfortunate aspect of a narrow definition is that (a) it misses the crux of the topic and (b) it forces the aff to defend the worst kind of suspects. Most people arent outraged about detaining suspects who have confessed to killing Americans. The real outrage is about detaining people who are only loosely tied to potential terrorist cells who never see a judge, much less a trial. A narrower definition allows the affirmative to defend less ground, but I personally think does the aff a disservice. The affirmative should also consider the political implications of a broader versus a more narrow definition. American politicians have refused to provide the Obama Administration with the funding to close Gitmo, including more liberal senators. Additionally, Congress barred the Obama Administration from transferring any Gitmo prisoner to the U.S. for any reason, including a trial. Americans did not want the 9/11 trials to take place on American soil.
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If the affirmative wants to
extend more rights to more alleged terrorists, there will potentially be more backlash.
The Obama Administration has been less than enthusiastic about closing Gitmo as well. For a more in depth look, read Glenn Greenwalds The Obama GITMO Myth at http://www.salon.com/2012/07/23/the_obama_gitmo_myth/. 11 Available at http://www.quinnipiac.edu/institutes-and-centers/polling-institute/national/release-detail?ReleaseID=1422.
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12NFL1-Terrorism Due Process www.victorybriefs.com C. Constitutional due process
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I am not envious of debaters because of this phrase. Due process is complicated and messy. The Constitution references due process in two places; the Fifth Amendment and the 14 property, without due process of law
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Amendment. The Fifth Amendment reads, [N] or shall any person be deprived of life, liberty, or The 14 Amendment provides, [N]or shall any State deprive any person of life, liberty, or property, without due process of law... These clauses are generally interpreted to mean the same thing at least in terms of the protections they provide. What exactly constitutes due process is the subject of serious debate. The Supreme Court articulated the test for due process in Board of Regents v. Roth.
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The case involved a public
colleges decision to not renew an untenured professors contract. The court concluded that the professor was not entitled to due process because he did not have a specific liberty or property interest in his job. The court underlined that property interests have to be found in the statutory or common law of the jurisdiction.
The particular rights that are probably of concern here are the right to not be killed, the right to counsel, the right to appear before a judge and the right to a jury trial. All of these are wellestablished interests that the Court has determined all citizens are due. However, the resolution says that non-citizens accused of terrorism get the same due process rights as citizens. Does that mean non-citizens should get their Miranda rights read to them? Do they have the right to be compensated for unjust imprisonment? What are the implications of giving non-citizens accused of terrorism all of the same protections as citizens? I could take up ten pages talking about the gray areas of due process, but Ill spare you. I would just caution debaters about assuming that the only rights that affirmatives or negatives plan to talk about are the typical ones that I listed earlier. Additionally, due process rights are occasionally suspended in times of national emergency. Abraham Lincoln suspended the right of habeas corpus during the Civil War. A federal circuit court determined that Lincolns decision was unconstitutional in Ex parte Merriman, but Lincoln continued to unlawfully detain pro-Confederate citizens.
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Just because Constitutional rights are
given does not mean they are actually enforced. Affirmatives should be aware of this possibility. It is not unreasonable to believe that even if the United States government extended due process protections to non-citizens, there would be an emergency executive order that could override those protections in times of national crisis, like after 9/11.
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U.S. const., amend. 5. 408 U.S. 564 (1972). 14 17 F. Cas. 144 (C.C.D. Md. 1861).
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II. CASE LAW Like I noted earlier, the United States has considered the legal status of detainees at Guantanamo Bay several times. Obviously, the detainees at Gitmo are the first people that come to mind when one reads the resolution. Every debater needs to know the ins and outs of the arguments in these cases to be effective on this topic. A. Rasul v. Bush
15
In Rasul, the Court determined that the U.S. court system did have the authority to decide whether non-citizens in Guantanamo Bay were unlawfully detained. More specifically, the Court held that United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.
The Court concluded that the United States did in fact have jurisdiction over the detainees because the U.S. has control over the territory at Guantanamo Bay. The Court distinguished the facts of Rasul from the facts in Eisentrager v. Forrestal, where the United States captured German civilians in China. The Court in Eisentrager noted that there were six critical factors in determining whether a non-citizen is due the writ of habeas corpus, We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States. Debaters should focus on each of these elements and consider not only that they are important under the Constitution, but also why they are important. In Eisentrager, the Court concluded that the German nationals were not due habeas corpus, partially because of the impracticality of providing non-citizens with trials. Again, it is important for debaters to address what kind of non15
542 U.S. 466 (2004).
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citizens they are talking about. If non-citizens are granted due process rights, they also have to be able to extradite non-citizens from across the globe to the U.S. It does, on first impression, seem wildly impractical to detain non-citizens abroad and bring them to the United States for a trial. This is particularly problematic when the non-citizens live in countries that potentially wont allow the United States to extradite them. Affirmatives in particular should consider the practical implications of their advocacy. B. Hamdi v. Rumsfeld
16
In Hamdi, the Court denied Yaser Hamdi, an American citizen, the right to a trial. He had been classified as an enemy combatant and the government argued that because Hamdi had taken up arms against the United States, he could properly be classified as an enemy combatant. Although the Hamdi case facts arent on point like Rasul, the logic behind giving Hamdi due process rights could also be extended to non-citizens. The Court ultimately concluded that although the government could detain Hamdi, it also must provide him an opportunity to contest his detention. Although the negative has the opportunity to provide a lot of utilitarian justifications for its position, I think the Hamdi case provides an excellent rights-based justification for extending due process protections to non-citizens. C. Hamdan v. Rumsfeld
17
The Court considered the case of Salim Ahmed Hamdan, a Yemeni citizen who was Osama Bin Ladens personal driver. The case considered first, whether federal courts had to respect the Geneva Convention and second, whether the special military commissions the Bush Administration set up were legal under military law. The Court discusses the separation of powers at length in Hamdan. The case articulates why allowing the executive branch to act as judge, jury and executioner is problematic, not only from a constitutional standpoint, but also from an international standpoint. The Court concluded that the Bush tribunals violated the Geneva Convention and some scholars might argue that this decreases our international credibility. I am sure a stock affirmative case will be that following international law will increase our good will with other countries, which will ultimately better help
16 17
542 U.S. 507 (2004). 548 U.S. 557 (2006).
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us combat the war on terror, solve global warming, etc. The affirmative and negative should both be ready to debate about soft power and its implications for international problem solving. D. Boumediene v. Bush
19 18
Boumediene was another writ of habeas corpus submission on behalf of a Bosnian citizen held at Guantanamo Bay. In response to the decision in Hamdan, the legislature had actually drafted a bill, the Military Commissions Act of 2006, to authorize trials by military commissions. The bill distinguished between unlawful enemy combatants (people who have materially supported hostilities against the U.S. and who are part of a non-State force like the Taliban) and lawful enemy combatants (people who are a member of the regular forces of a State party who are engaged in hostilities against the U.S.). The bill noted that any alien (non-citizen) unlawful enemy combatant is subject to trial by military commission. The first interesting distinction between Hamdan and Boumediene is that here, we have an actual declaration of the peoples will. The legislature explicitly authorized the military to try unlawful enemy combatants without the typical protections of due process. I think many debaters will adopt the position that the United States ought to follow the will of its people as a democracy, even if that will is imperfect. Debaters should be prepared to discuss the implications of overriding the legislature on decisions about rights, like the Court did in Boumediene. There are plenty of authors who say that judicially-fashioned rights dont actually create better circumstances for the disenfranchised people the Court is attempting to protect.
20
Ultimately, the Court concluded that the Military Commissions Act was unconstitutional because it encroached on habeas corpus rights. The Court also considered how general and sweeping the definition of unlawful enemy combatant is. If you give money to a charity that incidentally supports the Taliban, can you be accused of terrorism? Debaters should make sure they clearly define what it means to be accused of terrorism, otherwise the negative could be forced to debate in a world where the executive could detain any non-citizen for as long as he pleases without any form of recourse. I dont think this is a persuasive position for most judges.
Soft power is typically described as the ability to get what you want through attraction, rather than coercion. For more information, read Joseph Nyes Soft Power: The Means to Success in World Politics. 19 553 U.S. 723 (2008). 20 See the fallout from Brown vs. Board of Education. Some American schools are actually more segregated than they were in the 1960s. See Martha Minow, In Browns wake: Legacies of Americas Educational Landmark (2010). This is not to say that Brown shouldnt have been decided the way that it was, but rather than there are potentially negative consequences from even the most well-intentioned judicial decisions. 21 David Cole, After September 11: What We Still Dont Know, The New York Review of Books, Sept. 22, 2011 (Obama has also defended a sweeping interpretation of the laws prohibiting material support to designated terrorist groups. His then solicitor general, Elena Kagan, told the Supreme Court in 2010 that the law makes it a crime even to file an amicus brief on a designated groups behalf. By a divided vote, the Court upheld the statute, but the dissenting justicesStephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayormade it clear that a much narrower reading, limited to aid intended to further terrorism, was available had the administration chosen to adopt it.)
18
21
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There are obviously much more intricate details of each of these cases to consider. I think that each case examines a unique aspect of the resolution and debaters should be well-prepared on the case law surrounding the topic. III. STOCK POSITIONS A. Rights-based positions Rights-based affirmatives will take the position that independent of any potential negative consequences, certain rights are inalienable. Authors like Robert Nozick argue that some negative rights cant be denied, no matter what the circumstances are. Affirmatives should be prepared to justify why due process rights should be inalienable. Although they are provided for in the Constitution, debaters will likely have to provide a moral justification for due process rights as well. Negatives should be prepared to argue that either a utilitarian moral system is preferable, or that the right to due process is not sacred like the right to life. I think that generally speaking, people find absolutist rights positions unpersuasive or unfair. I think that rights-based positions that are grounded in a more reasonable calculus (we can violate a right or two if were going to go extinct otherwise) are more convincing and easier to argue. For example, I think the position that the consequence of us violating rights at home will lead to Americans being treated poorly abroad is fairly intuitive and easy to defend. Even if the United States has a primary obligation to its own citizens, the affirmative should be able to tie rightsbased affirmatives not only to advantages for non-citizens, but also for citizens. Obviously, the more outs the affirmative has, the better. 1ARs are not getting any easier. I think broad-based affirmatives that give themselves multiple routes out will have a very good chance of succeeding. B. Plans At the TOC this year, about 80% of the rounds I judged involved some kind of theory debate. About 50% of them were resolved on the theory level, before even getting to substance. I think judges, both on the national and local circuit, are going to be seeing more and more theoretical debates as time passes by. This topic is the perfect one to work out some of the kinks we have on the theory level. I think it is both persuasive and theoretically legitimate to talk about a more narrow area of the topic (for example, affirmatives arguing that we should extend due process rights to Guantanamo Bay detainees for political reasons). I will use the example of Iran to describe the kind of case that I mean.
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I think there is a compelling argument that the next major terror attack is going to come out of Iran. The State Department considers Iran to be the worlds most active state sponsor of terrorism.
22
It is unclear what the state of Irans nuclear program is and, more importantly, if the
23
country would be willing to use a nuclear weapon in a terrorist attack. like nuclear power.
It is even less clear what
the status of a biological weapons program would be, since biological dont have any dual-use,
The affirmative could take several routes to address the situation in Iran. I think it would be compelling to say that we should give due process rights to Iranians accused of terrorism because it is particularly important for us to increase our soft power with Ahmadinejads regime. There are reasons to believe that the Iranian regime is particularly vulnerable to soft power and might respond favorably to the extension of due process rights.
24
This could play out in two ways:
(a) the affirmative only defends extending due process rights to people who have some relationship to the Iranian regime or (b) the affirmative defends a utilitarian framework and weighs the advantages of stopping a nuclear confrontation with Iran against the negatives disadvantages. I think more traditional LD judges would be more comfortable with the latter approach, but either of them is fine in my book. As a reminder, if you decide to run a plan, you must cut recent evidence. No earlier than 2012. The situation in Iran is developing day-by-day, and evidence from 2010 is just not helpful. I think one of the best parts of debate is that it keeps students up to date on important world events, and running plans is one of the best ways to make sure youre on top of all the interesting things going on in the Middle East. C. Utilitarianism This will likely be the most common approach to the topic. I would guess that a traditional body count standard will be prevalent. Basically, whoever kills fewer people wins! The affirmatives logic will likely go like this: due process rights= terrorists hate us less= less terror attacks. The negative will likely respond with terrorists hate us anyways and due process rights= less information from terrorists= more terror attacks. The person with the more specific, recent evidence will likely win this stock debate. Put in the time to cut good cards from well-regarded authors.
22 23
Greg Bruno, State Sponsors: Iran, Council on Foreign Relations, Oct. 13, 2011. Irans Nuclear Program (Nuclear Talks 2012), New York Times, Aug. 24, 2012. 24 James Dobbins, Dalia Dassa Kaye, Alireza Nader and Frederic Wehrey, how to Defeuse Irans Nuclear Threat RAND Review, Spring 2012.
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If youre going to cite a study about the increase or decrease in terror attacks since Gitmo opened, I would suggest having a very, very good causal link story. Take a look at Robert Papes book, Dying to Win: The Strategic Logic of Suicide Terrorism for a very good examination of the root causes of suicide terror. There are also several interesting responses to his work, including Scott Ashworths Design, Inference, and the Strategic Logic of Suicide Terrorism: A Rejoinder. These are two great starting points for debaters who want to make claims about how and why terrorists do what they do. Im sure there will be plenty of cases that say giving due process rights will improve our relationship with the E.U., destroy our relationship with Saudi Arabia, etc. etc. These are all claims that must be supported with evidence. You cannot make analytic claims about the state of our relationship with our strategic allies in South Asia. Please cut the cards that you need to win! This is a fantastic topic. I think addresses a fascinating intersection of law and foreign policy. More than most, I think this topic is going to require a lot of research time. The best debaters in the country cut cards the mornings of tournaments, because they know recent evidence is good evidence. I hope everyone does themselves a favor and keeps up to date with current world events! Best of luck.
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Topic Analysis by Adam Torson

In the aftermath of 9/11 the United States moved rapidly to respond to the threat of Al Qaeda and affiliated groups. In this frenzy of activity, many acquiesced in authorizing emergency powers that were, at best, an uncomfortable fit with Constitutional norms and the rule of law. Now almost ten years removed from the 9/11 attacks, we continue to face serious questions of how to combat terrorism and maintain our most fundamental social values. The resolution presents one part of that question. I will begin by surveying a myriad of interpretational issues, and then move on to describe major Affirmative and Negative positions.
Interpretation
A. The United States ought to extend 1. Types of Actors and Advocacies There are a number of possible advocacies the affirmative might defend. While in some rounds it may be irrelevant, it is important to think through these issues because they do expand or narrow ground in significant ways. First, the Aff might simply defend that Congress passes legislation granting due process rights to non-citizen terrorist suspects that are functionally identical to those guaranteed to citizens. This interpretation makes sense because in reality Congress is the entity which has primarily dictated the procedural mechanisms for dealing with accused terrorists, whether through the federal courts or military commissions. The president has some discretion in terms of military policy and forum for prosecution, so most Aff advocacies will probably assume the cooperation of the executive branch as well. Negs may argue that this position is not topical because it doesnt elevate these due process protections to constitutional rights. It is unclear whether the adjective constitutional in this context is meant merely to designate which rights are granted (i.e. those in the Constitution), or whether the Aff must advocate that non-citizens due process rights should derive from the Constitution. For example, would it be enough to legislate a non-citizens right to counsel, or must that right be of constitutional import? The former interpretation may avoid advocacies that risk fiat abuse (see below). And, the word constitutional is not capitalized. That said, the latter
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interpretation is probably the more intuitive reading given the use of the word extend and the phrase the same constitutional due process rights. Second, the Aff might advocate an amendment to the Constitution. An amendment is proposed when 2/3 of both houses of Congress vote to submit it for ratification, or when 2/3 of state legislatures ask for a Constitutional convention for the purpose of ratifying a new amendment. It is ratified when 3/4 of state legislatures or ratifying conventions approve it. It seems intuitive that this process constitutes normal means when the resolution specifies a change in the status of Constitutional rights, and any ground the neg loses seems inconsequential. Fiating extraordinary actions by both federal governments and most of the 50 states, as well as cooperation from the executive branch, could at least plausibly run afoul of multi-actor fiat concerns, but the only real ground loss seems to be some politics arguments and positions expounding a Constitutional interpretation of due process that excludes non-citizens. Ultimately, a Constitutional amendment seems like a viable aff advocacy.
Third, the Aff might advocate that the Supreme Court either overturn a case or cases which deny certain due process rights on the basis of citizenship, or that they rule on a case in the system in a way that expands the due process rights of non-citizens. Given that a large proportion of the topic literature deals with the propriety of the Hamdan and Boumediene decisions in recent years, it seems reasonable that the Aff would stake out a legal advocacy like this. On the other hand, there are some concerns with Supreme Court fiat e.g. it unrealistically assumes that there is a test case in the system. Ultimately the abuse seems minimal and the scope of ground potentially denied to the Aff seems unreasonable, so my inclination is that a court-based advocacy like this is probably fine. 2. The Status Quo It is also important to consider the status quo, given that this will determine what kind of impacts the Aff can draw when they change it and what the Neg will defend when running disadvantages. The reality is that in the status quo the due process protections afforded non-citizens run the gamut. Some (usually those apprehended in the United States) are tried in Federal Courts. Others are tried before a military commission. Some are being held indefinitely in Guantanamo Bay or in Afghanistan. Still others (like Osama Bin Laden) are targeted and killed without any process whatsoever. Both sides will want to consider whether a uniform policy is better, or whether the sort of ad hoc determinations going on now are ultimately for the best.
12NFL1-Terrorism Due Process www.victorybriefs.com 3. Extend
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You might be thinking, Cant I just advocate that the due process rights should be the same, whether that means defending the status quo or even just ignoring what particular rights that entails? In many rounds you probably can. Be careful though; the word extend seems to strongly suggest a change in the status quo. In other words, it would be hard for the Aff to claim that non-citizens should have the same due process rights as citizens without defending some advocacy which explicitly extends the set of rights we now give. B. Non-Citizens The meaning of this phrase is fairly straightforward. Debaters must avoid the assumption, however, that the only distinction affecting ones due process rights is citizenship status. Recent Court decisions have indicated, for example, that where a suspected terrorist is apprehended and where he is detained are relevant to determining whether he has access to Federal habeas corpus petitions. Within the United States, immigration status is also relevant. In general, when the court determines whether there are sufficient procedural protections in place it weighs the interests of the person whose rights might be deprived, the risk of erroneous deprivation of those rights, and the administrative costs of adding more stringent procedures.
25
This demonstrates that
due process is often a matter of careful balancing rather than hard line rules. For the sake of the debate, you should probably argue that the Aff burden is to show that a noncitizen would be entitled to the same constitutional due process rights as a similarly situated citizen. This may be a way to get around listing a set of due process rights and demonstrating that non-citizens are due them all. C. Accused of Terrorism Some debaters will want to argue that accused should be interpreted as a formal legal term, so that the resolution does not deal with pre-accusation issues, i.e. in the course of capture. In some instances this seems like a reasonable limitation. For example, the Aff probably shouldnt have to defend reading Miranda rights when accused terrorists are captured on the battlefield in Afghanistan. However, this interpretation might also sidestep (to some extent) one of the core questions of the resolution, which is whether terrorism should be viewed under the paradigm of criminal justice or as a military or national security issue. Stretched to its limits, this interpretation might even mean that we oughtnt to talk about Guantanamo detainees who are being detained
25
Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)
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indefinitely but have not been formally charged with a crime. In less extreme manifestations this interpretation might be harmless, but make sure to ask about the implications of this definition of accused. Another category of suspects which may or may not be included based on the definition of accused are non-traditional combatants like Taliban fighters in Afghanistan or insurgents in Iraq. Individuals in these groups were widely labeled as terrorists in the American news media, but they dont exactly fit the mold of Al Qaeda terrorists trying to attack civilian populations in the United States directly. If a looser definition of accused is adopted and these categories are included, many more international relations issues are on the table (for better or for worse). Given their differential status in international law, including these groups with more traditional terrorists seems to be a little bit like comparing apples and oranges, but then again just about everyone detained on suspicion of terrorism is thrown into the same legal morass. D. Constitutional Due Process
For each specific right guaranteed under the rubric of due process in the Constitution there are many volumes written. Ill not go into detail about each of the rights listed below, but a short rubric of core due process rights seems in order. 1. Substantive versus Procedural Due Process To begin, there is an important distinction in Constitutional law between procedural due process and substantive due process. The former category is fairly intuitive it involves procedural measures designed to ensure the fairness and accuracy of the proceeding, e.g. the right to a jury trial. Substantive due process, on the other hand, guarantees more thoroughgoing rights rather than mere procedures. For example, Constitutional protections of abortion rights, the conditional right of custody of ones children, and the right to live with extended family are all derived from the due process clauses of the Constitution. In the context of terrorism prosecutions, the vast majority of due process rights in question will be procedural. Forcing the affirmative to defend a guarantee of substantive due process rights (e.g. the right to vote or the right to marry someone of a different race) would lead us far astray from the real world conflict area the resolution addresses.
2. Basic Procedural Due Process Protections Article I, Section 9 of the Constitution guarantees the writ of habeas corpus. This is the right of a person to appeal to the federal judiciary to remedy an unjust detention. It is often utilized when
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criminal defendants believe their rights have been violated in the course of a state prosecution. Several important Supreme Court cases have addressed the issue of whether non-citizens detained at Guantanamo have the right to habeas corpus petitions. The 4 Amendment protects the people from unreasonable searches and seizures. As a general proposition a search is unreasonable if it is not based on some articulable suspicion that was sufficiently compelling to justify a search under the circumstances. In the case of domestic investigations of citizens, this usually requires a demonstration of due process and a warrant prior to search. The 5 Amendment guarantees indictment by grand jury except in cases arising from the military overseas in a time of war. It also protects an individual from double jeopardy and from being compelled to testify against himself in court. Finally, it ensures that no person will be subject to deprivation of life, liberty, or property without due process of law. The 6 Amendment guarantees many rights of the criminally accused, including the right to a speedy public trial, a jury of your peers in a jurisdiction previously established by law, the right to be informed of the nature and cause of the charges against you, the right to subpoena witnesses to speak in your defense, and the right to have an attorney. Finally, the 14 Amendment guarantees that nobody will be deprived by either states or the federal government of life, liberty, or property without due process of law. 3. Torture An interesting question is whether a right not to be tortured constitutes a constitutional due process right. This seems a strange categorization. The common law, a body of foundational legal principles adopted by the United States in the Constitution, recognizes a right to bodily integrity that requires people to refrain from assaulting one another. We generally wouldnt call that a due process right. Similarly, various international legal instruments prohibit torture, but it would be strange to call these rights ones to a suitable process. Given how prevalent the discussion of torture is in the topic literature, it wouldnt surprise me to see this topic thoroughly debated even if it only tangentially relates to the topic. Torture for the purpose of intelligence gathering certainly doesnt seem to be a violation of a due process right, though the use at trial of any incriminating information gained through torture certainly would be. E. Sameprotections it grants to citizens.
th th th th
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One of the first interpretive revelations on the topic comes when you ask yourself what rights are guaranteed to citizens accused of terrorism. The answer in some cases is not many. Witness the case of Anwar al-Awlaki, an American cleric living overseas and allegedly supporting terrorist groups. He was placed on the Presidents targeted killing hit list and killed in a strike in Yemen with essentially no process at all. His father tried to challenge the targeting in Court, only to be told that he did not have standing to sue and besides his complaint raised a political question more properly left to the executive to decide. Avoiding this whole mess may be another good reason to limit the definition of accused to those formally charged with a crime, or to simply talk about why similarly situated citizens and noncitizens should receive the same treatment regardless of what it is. Still, its fair to say at this juncture that al-Awlaki is probably the exception rather than the rule. As a general principle, Americans accused of terrorism are due the same basic Constitutional rights as any other accused criminal. Interpreting that fact out of the resolution almost certainly drops the core argument set out of the round. Finally, this basic dynamic (that some non-citizens get due process rights and others dont) suggests another basic underlying tension, which is the question of whether the so-called war on terrorism should be treated more like a war or more like a criminal prosecution. In other words, what paradigm do we try to fit this new phenomenon under? Is it a punitive process like the criminal justice system? Is its purpose to incapacitate a threat to national security, like a military conflict? What happens when it is a little bit of both? Expect this dynamic to be at the center of many debate rounds, and determine where your advocacy stands on the question.
Affirmative Positions
There are at least four major categories of stock affirmative positions. A. The Purposes of Due Process One strategy for generating affirmative advantages is to think about why we give due process to citizens in the first place. There are a number of underlying justifications for due process that apply just as readily to non-citizens as to citizens. First, perhaps most fundamentally due process is designed to prevent the erroneous deprivation of basic rights. A person shouldnt be fined or sent to jail unless they have actually done
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something wrong. This interest seems to apply to non-citizens as well as citizens. There is no value in wrongfully detaining an innocent person for alleged acts of terrorism quite the opposite in fact. Many due process protections like the rules of evidence and the assistance of counsel are designed to prevent unreliable biases or prejudices from influencing decisions about guilt or innocence. In the context of terrorism prosecutions, this would seem to be an especially important concern. Second, due process helps to maintain the rule of law. The rule of law suggests that people and governments must abide by settled, standing rules so that individuals arent subject to the changing whims of a tyrant. The rule of law is therefore a critical check on government power because it ensures that the executive cannot invent crimes, punish political enemies, or use the machinery of government to persecute unpopular minorities. A set of procedural protections like the jury trial requirement means that such abuses cannot (or at least should not) happen. Third, due process depersonalizes justice. It ensures fairness by requiring impartial, detached evaluation of wrongdoing rather than simply allowing revenge by victims or their families. Intuition and history teach us that there is little justice in such tit-for-tat contests, and that placing the onus of justice on a society through fair procedural mechanisms is essential to maintaining a civilized society. In the international context this applies with particular force because there is an ongoing struggle between an international ethos of military might and an international rule of law. In other words, due process represents a commitment to legitimate means of dealing with other nations citizens rather than a might makes right approach. Fourth, due process affirms the individual dignity of the accused. Even though people accused of crimes may have done terrible things, the commitment to due process represents the humanitarian instinct that everyone deserves a right to speak in his own defense and know the charges against him. Procedural guarantees in criminal prosecutions prevent the indignity and inhumanity of summary judgments, witch-hunts and drumhead trials. B. International Relations Terrorism is a core issue of international relations in the 21 Century. There are a variety of IR arguments that will be common on the Aff. First, the United States is a party to many agreements to treat prisoners of war and accused criminals according certain sets of standards, including the provision of various due process rights when prosecuted. Even without the underlying moral justifications for these guarantees,
st
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states generally abide by them if for no other reason than to ensure that other states reciprocate and give American citizens those rights. Undermining basic humanitarian norms can definitely come back to bite you. Second, debaters will advance various positions based in international law. There is a reasonable case to be made that various U.S. practices against non-citizens (e.g. indefinite detention, extraordinary rendition, torture, etc.) are in violation of international agreements requiring the protection of due process rights. These include at least the Geneva Conventions and the ICCPR, among others. It is also likely that these practices are violations of customary international law or jus cogens. Third, some scholars argue that draconian and militarist tactics will backfire in the long run because they feed the anti-Western narratives of terrorist groups. The treatment of prisoners at Guantanamo or Abu Ghraib, for example, is a major rallying cry for terrorist groups recruiting. Fourth, it may be that denying non-citizens due process foments anti-American sentiment more generally. Failure to provide basic legal protections undermines international solidarity built on humanitarian norms, harms the ability of the U.S. to lead on global issues like economic stability and climate change, and may even inspire some states to engage in balancing tactics against the United States. While no single U.S. policy is likely to push us over the brink on any of these issues, we certainly dont make the situation any better by disregarding the fundamental rights of the accused. C. Criminal Justice Paradigm As indicated above, a fundamental question in the resolution is whether to regard the war on terrorism as a matter of criminal justice or national security. Some Aff positions will be based around defending the former. The criminal justice paradigm may be preferable because it utilizes more legitimate means, which makes international cooperation to combat terrorism simpler. Also, elevating terrorist groups to the same position as state adversaries gives too much credence to their cause. Labeling groups like Al Qaeda criminals both helps to marginalize terrorism as a tactic and to win the battle of ideas in the long run.
Moreover, the nature of prosecuting terrorism is much more akin to criminal justice than war fighting. Fighting in defense of ones nation is a presumptively legitimate act in the international community. Prisoners of war are held to prevent them from returning to the battlefield, but their detention is not punitive, and in fact the Geneva Conventions require that they be treated
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humanely. Terrorism doesnt fit this mold. Terrorists act in the name of a radical ideology rather than a state, and their actions dont follow any of the laws of war. They are much more appropriately conceptualized as criminals to be hunted down, tried, and punished rather than legitimate enemy combatants. D. Constitutional Interpretations A final set of positions will attempt to argue that, correctly interpreted, the Constitutional provisions for due process do in fact apply to non-citizens accused of terrorism. This might take the form of advocating for the overturning of a Court case or deciding a test case a certain way. For instance, the Aff will cite language in the Constitution guaranteeing due process to all persons rather than simply citizens and find case law to support that position.
Negative Positions
A. Counter-Terrorism The policy-makers who have adopted the controversial policies for how the United States handles non-citizens accused of terrorism are hardly misanthropes. Terrorism is a serious threat to the national security of the United States, and the practical dilemmas of keeping us safe while protecting our values are real. Many utilitarian positions on the Neg will simply explicate how important it is to counter-terrorism efforts that terrorism suspects not be given the full slate of constitutional due process rights. First, advocates of these positions will point out that there are times when it seems we need to act imminently to protect our national security and dont have time to provide due process. The quintessential example is the hypothetical terrorist who knows the whereabouts of an imminent attack but wont reveal the information absent torture. A more real world example is the execution of Osama Bin Laden. A second practical concern is that trying terrorism suspects in federal court risks leaking valuable intelligence. The need to present the accused with the evidence against him and the general rule that trials should be held in public make it difficult for members of the national security apparatus to effectively prosecute a case without giving up state secrets. Third, there is a concern that the need to provide constitutional due process rights will inhibit war fighting on the battlefield. Soldiers are not in a position to rigorously gather evidence and ensure
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a chain of custody, question witnesses, etc. They are not trained for such duty and it would almost certainly be a major hindrance on their core mission of providing military (rather than legal) victory in Afghanistan. Fourth, there has been significant concern voiced over the prospect of a terrorist attack on court proceedings for accused terrorists. This no doubt presents a desirable symbolic target for terrorist groups, and the safety of all involved is jeopardized for a marginally more fair process than a military tribunal. Finally, there is the basic worry that terrorists will get off on technicalities. When someone is released without a meaningful investigation of whether he is a guilty, a terrorist is likely to pose a subsequent danger to the community.
B. Counter-Plans
Expect a fair number of counter-plans on this topic, and be prepared to debate their theoretical merits. Many of these positions will be abusive. In particular, watch out for plan-inclusive counterplans (PICs). Some of these positions will discuss legitimate variations in the slate of rights given to non-citizens that are reflected in the topic literature and provide reasonable ground for both sides. But many of them will just be some slight tweak to the existing criminal justice system that provides some marginal advantage. These are likely unfair. The first major counter-plan you are likely to encounter will advocate the use of military commissions to try enemy combatants. While such commissions have been much maligned, and there are still reasons to be uneasy about their process, revised procedures for military commissions do provide a reasonable amount of procedural protection while doing a better job of protecting intelligence sources, accommodating the unique circumstances of battlefield apprehension, etc. Second, some will pick up on suggestions in the literature to create a specialized national security court to deal with some of the practical problems outlined above. Affirmatives should carefully scrutinize the competition of these positions. If they are Article III courts they may well have ALL the same Constitutional protections and therefore functionally be plan-plus they just tack on planks that would be extra-topical in an affirmative advocacy (e.g. for specific court procedures to deal with classified evidence).
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Third, there is a reasonable amount of topic literature advocating the use of an international court to try terrorists. Suggestions include creating a court specifically for acts of terrorism and expanding the jurisdiction of the International Criminal Court to include terrorism. This position again poses some vexing theoretical problems. Virtually any of these plans requires the coordination of many different nations, meaning that multi-actor fiat is a plausible theoretical objection. On the other hand, this debate does represent a reasonable proportion of the topic literature, which means its not quite so unrealistic as some other instances of multi-actor fiat. Supposing those difficulties can be solved, the advantage of an international court would likely be that it provides more legitimacy and a reasonable set of procedural protections while avoiding the ire of terrorist and other anti-Western groups. C. Military Paradigm This position is the flip side of the affirmative position articulated above. Terrorists are not a good fit for the criminal justice model. Most obviously, they tend to be more dangerous than the average criminal, which makes incapacitation a much larger priority. They tend to be sheltered by failed or failing regimes, which makes them particularly hard to prosecute through normal criminal justice channels. And, at the end of the day the primary concern is incapacitation rather than proportional punishment. Just like in a war, what is important is not the culpability of the accused but rather his potential to threaten American National security. D. Social Contract A stock Neg will make a simple social contract argument: Non-citizens are not members of the social contract and are therefore not due any rights from the government, let alone Constitutional rights. Debaters who want to develop this argument a little more thoroughly will elaborate on the civic republican bases for citizenship in the United States and claim that membership in the political community demands a willingness to sacrifice for the group, to pay taxes or do military service, etc. Non-citizens do not have those connections and so are not due the protection of the group. E. Constitutional Arguments
There are a variety of ways in which non-citizens are in fact treated differently by Article III Courts. Debaters will often pick one and articulate why this particular difference is important. More generally, the Neg may look to offer interpretations of Constitutional provisions that limit
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their application to non-citizens generally or those accused of terrorism in particular. In particular these positions might criticize the reasoning in Hamdi and Boumediene.
Conclusion
Best of luck to everyone on the first topic of the season!
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FRAMEWORK EVIDENCE
4
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AMENDMENT
U.S. Const. amend. IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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AMENDMENT
U.S. Const. amend. V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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AMENDMENT
U.S. Const. amend. VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

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AMENDMENT
U.S. Const. amend. XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
12NFL1-Terrorism Due Process www.victorybriefs.com TERRORISM DEFINED
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Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 Terrorism is an act by an individual or individuals intended to advance one of four causes: religious, social, economic or political; for the purposes of advancing the identified cause, the actor kills or harms innocent civilians or causes property damage to innocent civilians or intimidates the civilian population from conducting its daily life.
12NFL1-Terrorism Due Process www.victorybriefs.com COUNTERTERRORISM DEFINED
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Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 Counterterrorism should be simultaneously viewed from two distinct perspectives. One branch of counterterrorism is operational measures ranging from detention to imposition of administrative sanctions to killing suspected terrorists. The other branch is comprised of soft measures ranging from building schools and hospitals to economic investment and infrastructure development. The latters target audience are those who can be dissuaded. These are individuals who understand terrorism does not benefit their families or communities but are dependent on concrete measures demonstrating that the benefits of progress and modernity outweigh the harm terrorism inflicts.
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POST-9/11 SECURITY CONCERNS CHALLENGE THE FUNDAMENTAL NORMS OF LIBERAL DEMOCRACY Maureen T. Duffy [Doctoral Candidate, OBrien Fellow, Social Sciences and Humanities Research Council of Canada Fellow, McGill Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University], The Slow Creep of Complacency: Ongoing Challenges for Democracies Seeking to Detain Terrorism Suspects, Pace Intl L. Rev. Online Companion, Apr. 2010, at 42. As time passes, it appears that certain notions have become so embedded in the discourse that they cannot now be dispelled, and that a fundamental shift has taken place in certain traditional cultural values. The 9/11 attacks caused a ripple effect throughout many liberal democracies, under which the soft and facilitating state was replaced by a strong and intrusive state, and the categorical gap between rights-based democracies and authoritarian polities narrowed worryingly under a declared open-ended state of emergency and the so called war on terror.28 This dramatic shift in principles once deemed foundational appears to have created a lack of underlying stability in certain elements of democratic governance, described by one author as democracy without moorings. 29 The larger impact of these changes makes fundamental underlying questions that much more critical. Questions emerge in relation to these changes that go well beyond positivistic analyses of whether the changes fit into existing formal legal mandates, but instead go to larger issues of whether the changes can be sustained as a matter of logic and consistent with proclaimed values.
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UNDER THE HYBRID PARADIGM ENEMY COMBATANTS ARE DUE CERTAIN DUE PROCESS RIGHTS Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather they are a hybrid of both. To that end, I recommend the appropriate term for post 9/11 detainees is a combinationa convergence of the criminal law and law of war paradigms best described as a hybrid paradigm. Over the years, terms such as enemy combatant, illegal combatant, unlawful combatant, and illegal belligerent have been used to describe an individual engaged in combat that either lost his status as a soldier or never acquired it in the first place.24 Articulating this definition and determining the status of the enemy are of the utmost importance for a myriad of reasons, particularly in this context for due process considerations. The hybrid paradigm is philosophically and jurisprudentially founded on the principle that the accused must have judicial resolution of his status before a court of law.25 However, as touched on in subsequent sections, the American criminal law process is largely inapplicable to the current conflict.26 Accordingly, in order to guarantee the suspect certain rights and privileges in accordance with due process principles, the hybrid paradigm is predicated on criteria based initial detention and subsequent remand decisions, interrogation methods that do not include torture, the right to appeal conviction (regardless of before what court convicted) to an independent judiciary, the right to counsel of the suspects own choosing, known terms of imprisonment, and procedures to prevent indefinite detention.
12NFL1-Terrorism Due Process www.victorybriefs.com DUE PROCESS IN DETENTION PRACTICES DEFINED
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Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 Detentiondepriving an individual of his freedomis lawful in the American criminal law paradigm. It requires probable cause pertaining to past acts.31 The initial arrest, provided exigent circumstances do not exist,32 requires an arrest warrant issued by a detached and neutral magistrate in response to a request submitted by law enforcement based on evidence or sourced information.33 In addition to the initial detention, the court may conclude that continued detention is warranted, predicated on a variety of factors including severity of the crime, danger posed by the suspect and whether the individual is a possible flight risk. The presence of these additional factors allows the court to require additional detention. This detention model, with varying degrees of interpretation subject to country specific criminal procedure codes, is largely representative in countries adhering to the rule of law and separation of powers between the executive and judiciary. It is the essence of judicial review of the executive, so essential to preserving liberty and due process.34
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THE UNITED STATES HAS FAILED TO DEFINE THE DUE PROCESS RIGHTS OF SUSPECTED TERRORISTS Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 While Judge Bates decision was of the utmost importancemore than any Supreme Court holding of the past eight years addressing counterterrorism save Boumediene--it has not resulted either in a significant re-articulation of U.S. policy nor in the granting of habeas corpus to thousands of detainees. Aside from its decision in Boumediene, the Supreme Court has failed to articulate the rights granted to suspected terrorists. Similarly, Congress has failed to articulate these rights through its constitutionally granted oversight powers. It is essential that balancing or maximizing the legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, it seeks to move beyond the amorphousness that has defined much of the debate over the last seven years.51
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EXTENSION OF DUE PROCESS RIGHTS TO TERRORISM INVESTIGATIONS DEPENDS ON WHETHER WE APPLY A CRIMINAL JUSTICE PARADIGM OR THE LAWS OF WAR Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 While the protections of the Fifth and Fourteenth Amendments are inextricably tied to domestic criminal law interrogations, it is presently unresolved whether those rights will be extended to terrorism related interrogations.52 Resolving this dilemma requires determining within which rubric terrorism falls: criminal law, law of war or something else.53 Answering that question enables determining the rights, privileges and protections to be extended to individuals suspected of involvement in terrorism. In particular, with respect to the question this article seeks to address, the fundamental question is whether due process rights are to be extended regardless of the paradigm applied.
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THE SUPREME COURT HAS RULED THAT THE FOURTH AMENDMENT DOES NOT EXTEND TO NON-CITIZENS EXTRATERRITORIALLY, BUT THE FIFTH AND SIXTH AMENDMENTS APPLY ONCE A TRIAL BEGINS Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 To that end, from the due process perspective, the ultimate question regarding the Fifth Amendment is whether the right against self-incrimination should be extended to detainees.54 The question whether when an individual arrested in the zone of combat55 should be read be read his Miranda rights is likely to be answered in the negative given the inherent impracticality of American military personnel assuming this responsibility in the actual zone of combat. However, the question whether such rights and protections should be granted to the detainee once he is in the interrogation setting remains to be satisfactorily resolved.56 The Supreme Court has linked the Fifth Amendments protections against selfincrimination to general limitations of acceptable interrogation methods. In addressing the question of extending Fifth Amendment rights to non-citizens, courts and scholars have often wrestled on exactly this question, for instance, in Zadvydas v. Davis, the Supreme Court reaffirmed the tradition of applying due process to aliens present within the United States, regardless of their legal status.57 Specifically, the Court held that the Fifth Amendment is incongruent with a law that would permit the indefinite detention of a non-citizen on domestic soil. Thus, once present in the country, aliens can claim due process protections.58 In further addressing this question, the court in Verdugo-Urquidez denied a motion to suppress evidence seized by agents of the Drug Enforcement Agency while searching the home of a Mexican citizen without a warrant.59 While the Court held that Fourth Amendment rights are not to be extended to noncitizens, Justice Kennedy, in his concurring opinion, stated that the defendant should be entitled to Due Process Clause protection under the Fifth Amendment when his case finally went to trial.60 Specifically, the Court ruled that Fourth Amendment protections did not extend to the home of a Mexican citizen in Mexico. The Court, however, made a point to distinguish its holding from one that would have occurred had the appeal been regarding the Fifth Amendment. In looking at the language of the Fourth Amendment, the Court noted that the Amendments application was only to the people. The Fifth and Sixth Amendments, however, apply to persons or the accused, respectively. The Court although not explicitly extending Fifth Amendment protections to noncitizens, used dicta to indicate that such a holding is not beyond the pale.
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PRISONER OF WAR STATUS TRADITIONALLY ENTAILS NON-PUNITIVE DETENTION Laurie R. Blank [Director, International Humanitarian Law Clinic, Emory University School of Law], Square Peg in a Round Hole: Stretching Law of War Detention Too Far, 63 Rutgers L. Rev. 1169 (Summer 2011). (Note: LOAC stands for Law of Armed Conflict) Under the prisoner of war ("POW") detention regime in the Third Geneva Convention and earlier customary and conventional law, preventing a return to hostilities is the underlying purpose of detention. "The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on [*1184] he must be removed as completely as practicable from n54 the front, treated humanely and in time exchanged, repatriated or otherwise released." In particular, POWs are not liable to prosecution for their lawful wartime acts, which reinforces the fact that they are not held as a form of punishment for engaging in combat. Thus, the detention of a combatant "has only one purpose: to preclude the further participation of the prisoner of war in the ongoing hostilities. The detention is not due to any criminal act committed by the prisoner of n55 war, and he cannot be prosecuted and punished "simply for having taken part in hostilities.'"
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PRISONERS OF WAR ARE DUE CERTAIN RIGHTS AND PROTECTIONS UNDER INTERNATIONAL LAW Laurie R. Blank [Director, International Humanitarian Law Clinic, Emory University School of Law], Square Peg in a Round Hole: Stretching Law of War Detention Too Far, 63 Rutgers L. Rev. 1169 (Summer 2011). (Note: LOAC stands for Law of Armed Conflict) Beyond this fundamental framework of detention affirmatively designed to be nonpunitive, the overarching conception of protective custody for POW detention can be seen throughout the Third Geneva Convention. As the ICTY Appeals Chamber recently stated, "the protection of n60 POWs is covered by an extensive net of provisions within the Third Geneva Convention," and numerous components of this comprehensive framework repeatedly emphasize that such detention is protective in nature. At the macro level, detaining powers retain a measure of responsibility for the treatment of POWs even after they are transferred to another power, n61 demonstrating the strong protective underpinnings of POW custody. The Commentary thus explains that "it was never the intention of the authors of the Convention thereby to relieve the n62 transferring Power of all responsibility with regard to the prisoners who are transferred." A system based solely on punitive conceptions would not require this retention of responsibility as a protective measure. More specifically, the Third Geneva Convention requires that detaining powers take proactive steps to protect POWs from the hazards of combat. Articles 19 and 23 mandate that POWs be n63 held "far enough from the combat zone for them to be out of danger" and cannot be "detained n64 in areas where [they] may be exposed to the fire of the combat zone." Article 13 also prohibits reprisals against POWs because, among other reasons, "the feelings which lie behind such n65 When combined practices are absolutely contrary to the spirit of the Geneva Conventions." with the extensive provisions [*1186] governing treatment of POWs, relations with the authorities, relations with the exterior, and other issues, the protective function and nature of POW custody is unassailable. Therefore, "it should always be remembered that prisoners of war n66 are not convicted criminals in need of corrective training or punishment," but are simply held so as to remove them from the battlefield.
12NFL1-Terrorism Due Process www.victorybriefs.com TERRORISM IS DIFFICULT TO DEFINE NON-POLEMICALLY Coady, C.A.J. (2004). Terrorism and innocence. The Journal of Ethics 8: p.37
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For a phenomenon that arouses such widespread anxiety, anger and dismay, terrorism is surprisingly difcult to dene satisfactorily. It has been estimated that there are well over 100 different denitions of terrorism in the scholarly literature. This disarray partly reects the fact that much discourse employing the term is highly polemical so that the act of dening becomes a move in a campaign rather than an aid to thought. Consequently, many denitions are too broad to be of analytical value, conating terrorism with any form of violence of which the authors disapprove. Just as you are stubborn and pig-headed where I am rm and resolute; so you are a terrorist where I am engaged in legitimate defence (or, these days, pre-emption). We need to move beyond this double-talk if we are to make sense of what is important in the debate about terrorism. On the other hand, it should be conceded that some of the semantic confusion results from difference in judgement about the moral signicance of certain key political concepts, such as national sovereignty, self-determination and political legitimacy. I shall have something to say about this in what follows, but will not seek to settle these issues, merely to get them into the open. My main target is not, in any case, denitional, but primarily moral since I am concerned by attempts to reinterpret terrorism by chipping away at the concept of innocence. But some denitional clarication is initially necessary.
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THE MAJORITY OF TERRORIST ATTACKS HAVE BEEN SPONTANEOUS ONE-ON-ONE ATTACKS Hardin, Russell (2004). Civil liberties in the era of mass terrorism. Journal of Ethics 8: p.79 There are at least two distinctly different problems of terrorism. The vast majority of terrorist actions, reasonably dened, against U.S. citizens have been virtually one-on-one actions, many of them apparently spontaneous. These actions must commonly be dealt with in the way we deal with murder and other felonies. We apprehend the terrorists after the fact and sentence them for their crimes. The majority of all deaths of U.S. citizens and their employees by terrorism in the two decades before September of 2001 were, however, from well-organized attacks. One of these was by the U.S. citizen Timothy McVeigh in Oklahoma City (OK) in 1995. The other three were by Arabic-Muslim terrorists: the bombings of PanAm ight 103 over Lockerbie in 1988 and of the U.S. embassies in Kenya and Tanzania in 1998. Taken together, the perhaps 1200 U.S. deaths from these and from less well organized attacks were dwarfed by the roughly 3000 deaths in the coordinated simultaneous attacks in September of 2001. It is such planned attacks that surveillance might prevent and it is the devices for prevention that raise the most grievous issues for civil liberties. Henceforth, therefore, I will be concerned only with such terrorism and the policies of its prevention.
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TERRORISTS ARE NOT CAPABLE OF CARRYING OUT EFFECTIVE ATTACKS Mueller, John & Mark Stewart (2012). The terrorism delusion. International Security 37.1: p. 88 In sharp contrast, the authors of the case studies, with remarkably few exceptions, describe their subjects with such words as incompetent, ineffective, unin- telligent, idiotic, ignorant, inadequate, unorganized, misguided, muddled, amateurish, dopey, unrealistic, moronic, irrational, and foolish.9 And in nearly all of the cases where an operative from the police or from the Federal Bureau of Investigation was at work (almost half of the total), the most appropriate descriptor would be gullible. In all, as Shikha Dalmia has put it, would-be terrorists need to be radical- ized enough to die for their cause; Westernized enough to move around without raising red oags; ingenious enough to exploit loopholes in the security apparatus; meticulous enough to attend to the myriad logistical details that could torpedo the operation; self-sufacient enough to make all the prep- arations without enlisting outsiders who might give them away; disci- plined enough to maintain complete secrecy; andabove allpsychologically tough enough to keep functioning at a high level without cracking in the face of their own impending death.10 The case studies examined in this article certainly do not abound with people with such characteristics.
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AL QAEDA KILLS AS MANY PEOPLE PER YEAR WORLDWIDE AS US CITIZENS DROWN IN BATH TUBS EACH YEAR Mueller, John & Mark Stewart (2012). The terrorism delusion. International Security 37.1: 91. Other terrorist groups around the world afaliated or aligned or otherwise connected to al-Qaida may be able to do intermittent damage to people and infrastructure, but nothing that is very sustained or focused. In all, extremist Islamist terrorismwhether associated with al-Qaida or nothas claimed 200 to 400 lives yearly worldwide outside war zones. That is 200 to 400 too many, of course, but it is about the same number as bathtub drownings every year in the United States.23
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THERE PROBABLY ARENT TERRORIST ATTACKS BEING THWARTED THAT WE DONT KNOW ABOUT; IF THERE WERE, THEN WE WOULD HAVE HEARD ABOUT IT Mueller, John & Mark Stewart (2012). The terrorism delusion. International Security 37.1: 94. That such claims may be exaggerated is further suggested by the fact that when a terrorist plot has been uncovered, policing agencies have generally been anything but tight-lipped about their accomplishment, instead parading their deed and often exaggerating the direness of the threat presented by those detained.34 Examples include two instances in 2011 in which the New York Police Department prominently announced terrorism arrests of people even the FBI did not think worth pursuing (cases 42 and 48). Relatedly, the huge dump of classiaed information released by WikiLeaks in 2010 contained no really signiacant new disclosuresalmost all of the information was already essentially public, though in many cases less textured and nuanced.35
12NFL1-Terrorism Due Process www.victorybriefs.com THERE IS NO WAY AL QAEDA WILL EVER ACQUIRE A NUCLEAR WEAPON
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Mueller, John & Mark Stewart (2012). The terrorism delusion. International Security 37.1: 98. Few of the sleepless, it seems, found much solace in the fact that an al-Qaida computer seized in Afghanistan in 2001 indicated that the groups budget for research on weapons of mass destruction (almost all of it focused on primitive chemical weapons work) was $2,000 to $4,000.49 In the wake of the killing of Osama bin Laden, ofacials now have many more al-Qaida computers, and nothing in their content appears to suggest that the group had the time or inclination, let alone the money, to set up and staff a uranium-seizing operation, as well as a fancy, super-high-technology facility to fabricate a bomb. This is a process that requires trusting corrupted foreign collaborators and other criminals, obtaining and transporting highly guarded material, setting up a machine shop staffed with top scientists and technicians, and rolling the heavy, cumbersome, and untested anished product into position to be detonated by a skilled crewall while attracting no attention from outsiders.50
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THE LIKELIHOOD OF A US CITIZEN DYING IN A TERRORIST ATTACK IS 1 IN 35 MILLION Mueller, John & Mark Stewart (2012). The terrorism delusion. International Security 37.1: 103. At present rates, as noted earlier, an Americans chance of being killed by terrorism is one in 3.5 million in a given year. This calculation is based on history (but one that includes the September 11 attacks in the count), and things could, of course, become worse in the future. The analysis here, however, suggests that terrorists are not really all that capable, that terrorism tends to be a counterproductive exercise, and that September 11 is increasingly standing out as an aberration, not a harbinger. Moreover, it has essentially become ofacially accepted that the likelihood of a large-scale organized attack such as Septem- ber 11 has declined and that the terrorist attacks to fear most are ones that are small scale and disorganized.66 Attacks such as these can inoict painful losses, of course, but they are quite limited in their effect and, even if they do occur, they would not change the fatality risk for the American population very much.
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OUR FEARS OF TERRORISTS ARE LEADING TO OUT OF CONTROL SPENDING Mueller, John & Mark Stewart (2012). The terrorism delusion. International Security 37.1: 103104. Since September 11, expenditures in the United States on domestic homeland security alone that is, excluding overseas expenditures such as those on the wars in Iraq and Afghanistan have expanded by more than $1 trillion.68 According to a careful assessment by a committee of the National Academy of Sciences in a 2010 report, these massive funds have been expended without any serious analysis of the sort routinely carried out by DHS for natural hazards such as ooods and hurricanes. The committee could not and any DHS risk analysis capabilities and methods adequate for supporting the decisions made, noted that little effective attention was paid to fundamental issues, was (with one exception) never shown any document that could explain exactly how the risk analyses are conducted, and looked over reports in which it was not clear what problem is being addressed.69 Similar conclusions emerged from a study focusing on intelligence spending by Dana Priest and William Arkin. They calculate that it has increased by 250 percent since September 11 without anyone in government seriously trying to agure out where the overlaps and waste werean apt description of a delusionary process. After receiving a steady diet of vague but terrifying information from national security ofacials, they continue, American taxpay- ers have shelled out hundreds of billions of dollars to turn the machine of government over to defeating terrorism without ever really questioning what they were getting for their money. And even if they did want an answer to that question, they would not be given one, both because those same ofacials have decided it would gravely harm national security to share such classiaed informationand because the ofacials themselves dont actually know.70
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AFFIRMATIVE EVIDENCE
PROBLEMS IN THE STATUS QUO DESPITE PROMISES OF REFORM, THE OBAMA ADMINISTRATION IS MAINTAINING MANY POST-9/11 DETENTION POLICIES Maureen T. Duffy [Doctoral Candidate, OBrien Fellow, Social Sciences and Humanities Research Council of Canada Fellow, McGill Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University], The Slow Creep of Complacency: Ongoing Challenges for Democracies Seeking to Detain Terrorism Suspects, Pace Intl L. Rev. Online Companion, Apr. 2010, at 42. Adding to the controversy, it has been reported, as of the date of this article, that the panel President Obama created to assess the cases at Guantanamo Bay is recommending to him that, in relation to approximately 50 of the detainees, trials are not considered possible, and that release is not feasible because the detainees are seen as too dangerous.15 The net result is that, if the U.S. Government adopts the recommendations of the panel, these people could be considered permanent detainees, without any of them having even the prospect of any judicial proceeding first. It seems unnecessary to explain why this is a departure from traditional concepts of the rule of law and constitutional values within the U.S., and it signals that, early promises of change notwithstanding, the alterations in detention standards initiated under President Bush were not temporary measures, but, rather, in many ways, represent permanent, or at least very long-term, changes to the legal landscape within the U.S.
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OTHER THAN THE WRIT OF HABEAS CORPUS, RECENT DECISIONS HAVE DENIED THAT DUE PROCESS EXTENDS TO NON-CITIZENS OUTSIDE THE UNITED STATES Shea Esterling [Tutor in Law, Aberystwyth University]. Putting the Terror in Territorial: Reflections on the Global War on Terrorism and U.S. Detention Policy, Journal of Terrorism Research, Volume 2, Issue 3 (Law Special Edition). November 2011. Non- citizens held at Guantanamo Bay also have been held subject to indefinite detention. In late 2001, the U.S. Government began to transfer both citizens and non-citizens captured on the battlefield in Afghanistan and later in Iraq as part of the broader war on terror to a detention facility at Guantanamo Bay Naval Base in Cuba. The first detainees actually arrived on January 11, 2002 and since then 779 individuals have been passed through its gates [23] with more individuals coming from Afghanistan than any other state. [24] Legal challenges to this detention quickly ensued with the first decisions from the Supreme Court in 2004. In Rasul v. Bush [25] the Supreme Court held that it had the power to hear federal habeas corpus petitions under 28 U.S.C. 2241 [26] from individuals, both citizens and non-citizens, held in Guantanamo Bay as the statute then did not make distinctions based on location. [27] However, it did not extend the constitutional guarantee of habeas corpus or any other constitutional rights including that of Due Process. It was not until 2008 in Boumediene v. Bush [28] that the Supreme Court ruled that all Guantanamo Bay detainees including non-citizens had the right to the constitutional guarantee of habeas corpus as provided for in the Great Writ known as the Suspension Clause which allows for individuals to challenge the legality of their detention. [29] In making this determination, the Court noted that the Constitutions extraterritorial application depends on objective factors and practical concerns [30] including: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ. [31] Although a victory, it is limited and may prove hollow. The Supreme Court in Boumediene left open almost as many questions as it answered. Crucially, it did not speculate on the remedy available for those persons to be found unlawfully detained and nor the extent to which other constitutional provisions extend to non-citizens at Guantanamo. Following Boumediene, in Rasul v. Myers [32] four British nationals formerly detained at Guantanamo Bay sued for damages alleging that their treatment in custody violated their rights under the Fifth Amendment to Due Process and under the Eighth Amendment to be free from cruel and unusual punishment as secured in the Constitution. The D.C. Circuit in rejecting this claim interpreted Boumediene on remand as disclaim[ing] any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause. [33] In essence, in the circuit courts it appears that non-citizens detained at Guantanamo have no rights under the Constitution other than the right to petition of habeas corpus. More recently, in 2010 in Kiyemba v. Obama, [34] the D.C. Circuit held that although the constitutional writ of habeas enables Guantanamo Bay detainees to challenge the legality of their detention, habeas courts lack the authority absent the enactment of an authorizing statute to compel the transfer of a non-citizen detainee into the U.S. The D.C. Circuit found this to be the case even if the detainees are found to be unlawfully held and the government has been unable to secure their release to a foreign state. [35] The D.C. Circuit denied their release on a number of grounds but of significance here it gave its decision based on the long standing jurisprudence that underpins Mezei; the jurisprudence that constitutional protections do not apply to non-citizens outside of the U.S. The D.C. Circuit noted that [t]he due process clause cannot support the courts order of release Decisions of the Supreme Court and of this court hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States. [36] In essence, the court applied the Mezei principle that has made the Marielitos subject to indefinite detention to the non-citizen Guantanamo Bay detainees which denies them the constitutional protections of Due Process and rather posits that, [w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned. [37] The Supreme Court has yet to rule if any other constitutional protections other than habeas corpus apply to the Guantanamo Bay
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detainees as it vacated the decision to review the Kiyemba case as other countries agreed to take the petitioners. [38] In turn, this victory like that of the Marielitos is a limited and tenuous at best for the 171 individuals that remain at Guantanamo Bay. [39]
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THE OBAMA ADMINISTRATION HAS MADE LITTLE PROGRESS IN REVERSING BUSHERA PROGRAMS THAT COMPROMISE DUE PROCESS FOR SUSPECTED TERRORISTS Owen Fiss [Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School], Aberrations No More, Utah Law Review, No. 4 (2010). pp. 1085-1099. On November 4, 2008, only months after the Boumediene decision, Barack Obama was elected president of the United States. This was a transcendent moment in the history of a nation founded on slavery. There was also reason to believe that Obama might repudiate many of the Bush policies that offended the Constitution. Obama had campaigned on a platform that promised change, and many understood that promise to reach Bushs counterterrorism policies. Obama gave further credence to this belief when, in his inaugural address, he rejected the notion that the fight against terrorism required us to betray our ideals. For the most part, however, Obama has not been true to this promise. Although he withdrew the last combat troops from Iraq in August 2010 and has been meticulous in avoiding the use of the phrase War on Terror, Obama has frequently declared that we are at war with Al Qaeda and the Taliban, and in the name of these wars, has continued many of the unconstitutional policies of Bush. As his first order of business, Obama issued an Executive Order banning torture.56 He thus reaffirmed the constitutional principle codified by McCains addition to the Detainee Treatment Act of 2005 and removed the doubt created by the statement Bush had made on signing that Act. Obama also minimized the risk of torture by issuing orders that same day closing the secret prisons maintained abroad by the CIAthe so-called black sites57and requiring the CIA to follow the Army Field Manual when interrogating suspects.58 Yet we must take account of the fact that Obama quickly brushed aside calls for criminal prosecutions and truth commissions to investigate the abusive interrogation practices of the previous administration. After a public outcry, his attorney general opened an investigation on a CIA interrogator accused of going beyond agency guidelines.59 The alleged crime was not waterboarding, which appears to have been authorized by higher officialsperhaps, if his memoir is to be believed, by Bush himself. Rather, the agent was accused of threatening a hooded and shackled prisoner with imminent death first by revving an electric drill near the prisoners head and then by cocking a semi-automatic handgun in the same position. The investigation of this rogue agent was opened in August 2009 and we still do not know what might come of it. For the most part, the president has insisted, even with as gross an offense as torture, that he is interested in the future, not the past, without understanding that how one treats the past partly determines what will happen in the future. Obama can also be faulted for not disavowing the practice of extraordinary rendition with any clarity. In fact, on two notable instances, one in the Ninth Circuit and the other in the Second Circuit, the Obama administration sought to block judicial inquiries into renditions conducted by the Bush administration. These proceedings were brought by victims of rendition and were pending before appellate courts when Obama took office. In one, Obamas lawyers relied on the state secrets doctrine, transforming what was originally an evidentiary privilege into a de facto grant of immunity to the CIA.60 In the other, his lawyers claimed that any judicial inquiry into the practice of extraordinary rendition would compromise the executives authority over military and foreign affairs.61
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THE OBAMA ADMINISTRATION HAS ESSENTIALLY CONTINUED THE BUSH ERA ASSAULT ON CONSTITUTIONAL DUE PROCESS, WHICH UNDERMINES AMERICAN VALUES Owen Fiss [Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School], Aberrations No More, Utah Law Review, No. 4 (2010). pp. 1085-1099. We must of course be careful to note the differences between Bush and Obama, and yet the essential truth is one of continuity. Obama has not disavowed extraordinary rendition and has, in fact, sought to block judicial inquiries into that practice. Obama has continued the policy of imprisonment without trial. Obama has sought to deny the writ of habeas corpus to the prisoners now being held in Bagram. Obama has continued to use military commissions to try terrorist suspects. And Obama has continued the policy of warrantless wiretaps. Obama sometimes announced these policies with reluctance, which was never Bushs style, but in the end, Obama overcame this reluctance and chose to sacrifice principle. The reasons for Obamas perpetuation of Bushs policies are hard to fathom. Maybe Obama learned things about the nature of the terrorist threat that he did not know before. Maybe Obama compromised on these issues of principle in order to gain support for a number of his other policieshealthcare or economic recoveryall most worthy. Or maybe Obama has been unable to resist the momentum achieved by the Bush policies now that they have been endorsed by Congress and tolerated by the Supreme Court. I just do not know and we are likely never to know. Our concern should be, however, not with the reasons for Obamas actions, but rather with the consequences of his action, which are unmistakable and troubling. At the beginning of the decade and in the immediate wake of 9/11, many of the abuses of the Constitution that I have identified were seen as aberrations, perhaps unilateral excesses of Bush and his close circle of advisors. Soon these practices received the endorsement of Congress and often the acquiescence of the Supreme Court. Now they have been endorsed by the new president, a lawyer who professes to be dedicated to the Constitution and the highest ideals of the nation. As a result, the transgressions of the Bush era, rather than being denounced as unworthy of our Constitution, have been institutionalized. They have become the official policies of our government and are routinely defended as constitutional. Not only must we today suffer these transgressions, but they will inevitably determine what is permissible in the future. They have shaped our understanding of what is acceptable, and may well serve as precedents for a less reluctant president. Continued in this way, unconstitutional policies first initiated by Bush in the War on Terror have taken on a life of their own and have become durable features of our legal order. As such, they betray the proudest ideals of the nation, undermine one of the pillars of our self-understanding, and deny usall of us, including Obamathe right to speak of the example of America as we once did as a beacon for all the world.
12NFL1-Terrorism Due Process www.victorybriefs.com CHECKS AND BALANCES
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UNNUANCED DISCOURSE SURROUNDING THE WAR ON TERRORISM CAUSES CONFLICT BETWEEN COURTS AND OTHER BRANCHES OF GOVERNMENT Maureen T. Duffy [Doctoral Candidate, OBrien Fellow, Social Sciences and Humanities Research Council of Canada Fellow, McGill Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University], The Slow Creep of Complacency: Ongoing Challenges for Democracies Seeking to Detain Terrorism Suspects, Pace Intl L. Rev. Online Companion, Apr. 2010, at 42. The language used in the terrorism context often lacks a certain amount of nuance, instead involving issues characterized in stark, either/ or, terms.20 In talking about whether to pass specific legislation, for instance, the framing of the issue may have been a key point in determining how the public, and often legislative bodies, would perceive the appropriate course to take. A common tendency, for instance, is for people to discuss the need to balance security against human rights, and this balancing notion is often accepted, with little questioning into whether these are, in fact, commensurable notions that must involve a trade-off.21 It is simply assumed to be true and structures are then built on this assumption. This approach appears, at times, to be in contrast with the approach taken by some national high courts, in which the actions taken are measured against the discourse of long-standing constitutional principles, rather than the somewhat newer semantics of recent public discourse. That constitutional discourse has, at times, seemed incompatible with the public discourse surrounding terrorism, and in many ways it appears to underpin the conflict often arising between the judiciary and public officials. 22
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THE DENIAL OF DUE PROCESS RIGHTS TO NON-CITIZENS ACCUSED OF TERRORISM REPRESENTS A DANGEROUS DEGREE OF JUDICIAL DEFERENCE TO THE EXECUTIVE Shea Esterling [Tutor in Law, Aberystwyth University]. Putting the Terror in Territorial: Reflections on the Global War on Terrorism and U.S. Detention Policy, Journal of Terrorism Research, Volume 2, Issue 3 (Law Special Edition). November 2011. Process and under the Eighth Amendment to be free from cruel and unusual punishment as secured in the Constitution. The D.C. Circuit in rejecting this claim interpreted Boumediene on remand as disclaim[ing] any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause. [33] In essence, in the circuit courts it appears that non-citizens detained at Guantanamo have no rights under the Constitution other than the right to petition of habeas corpus. More recently, in 2010 in Kiyemba v. Obama, [34] the D.C. Circuit held that although the constitutional writ of habeas enables Guantanamo Bay detainees to challenge the legality of their detention, habeas courts lack the authority absent the enactment of an authorizing statute to compel the transfer of a non-citizen detainee into the U.S. The D.C. Circuit found this to be the case even if the detainees are found to be unlawfully held and the government has been unable to secure their release to a foreign state. [35] The D.C. Circuit denied their release on a number of grounds but of significance here it gave its decision based on the long standing jurisprudence that underpins Mezei; the jurisprudence that constitutional protections do not apply to non-citizens outside of the U.S. The D.C. Circuit noted that [t]he due process clause cannot support the courts order of release Decisions of the Supreme Court and of this court hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States. [36] In essence, the court applied the Mezei principle that has made the Marielitos subject to indefinite detention to the non-citizen Guantanamo Bay detainees which denies them the constitutional protections of Due Process and rather posits that, [w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned. [37] The Supreme Court has yet to rule if any other constitutional protections other than habeas corpus apply to the Guantanamo Bay detainees as it vacated the decision to review the Kiyemba case as other countries agreed to take the petitioners. [38] In turn, this victory like that of the Marielitos is a limited and tenuous at best for the 171 individuals that remain at Guantanamo Bay. [39]
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THE JUDICIARY DOES NOT OWE ABSOLUTE DEFERENCE TO CONGRESS IN MATTERS OF IMMIGRATION POLICY Shea Esterling [Tutor in Law, Aberystwyth University]. Putting the Terror in Territorial: Reflections on the Global War on Terrorism and U.S. Detention Policy, Journal of Terrorism Research, Volume 2, Issue 3 (Law Special Edition). November 2011. The plenary power doctrine refers to the idea that something is so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. [57] Undoubtedly, this doctrine seeks to preserve the sovereign role of the political branches and has been used extensively in immigration law tracing its roots to The Chinese Exclusion Case where the Supreme Court fleshed out its reasoning for its application to immigration noting: The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. [58] The Court further added that any issues with the policy should be directed toward the political branches of the Government as it is solely entrusted with power over these matter and so it not a question for judicial determination [59]; thus establishing a hands off approach by the courts in the realm of immigration and in particular questions concerning the exclusion of non-citizens. However, this deference of the plenary doctrine relies on too simplistic of a conception of the institutional competence of the different branches of government. The Constitution does grant supreme power to Congress over immigration but not exclusive power. [60] In fact the Supreme Court has recognized that it is not possible to delineate a fixed and precise line of separation in these matters between political and judicial power under the Constitution. [61] In turn, in this zone of twilight [62] the balance surely must tip in favor of protecting the most fundamental of rights to the American scheme of justice, the liberty of individuals to be the free from unlawful detention. Yet, the plenary power in both the cases of the Guantanamo Bay detainees and the Marielitos seems to have morphed from a doctrine of judicial restraint out of respect for the separation of powers enshrined in the Constitution into a creature of judicial deference which has been used by the judiciary as a mechanism for the abandonment of its constitutional role. After all, the judiciary in the U.S. has a strong tradition of [63] and indeed it is one of its primary functions to protect individuals against governmental excess. However, this increasing abnegation is exactly what the war on terror has allowed the judiciary to achieve through raising the specter of security concerns and risks.
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THE UNITARY EXECUTIVE THEORY IS INCONSISTENT WITH DUE PROCESS Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 However, in the immediate aftermath of 9/11 the Bush Administration established an alternative paradigm for those detained in the so-called Global War on Terrorism. Rather than relying on the traditional model, the Administration created an alternative fundamentally deficient with respect to due process. Devoid of probable cause standards, much less review by an independent judiciary, the Administration implemented the unitary executive theory35 paradigm, actively advocated by Professor John Yoo36 and David Addington37, amongst others. The significance of the unitary executive theory in the due process discussion is profound: in its essence, it significantly minimizes the role and power of the Congress and judiciary with respect to counterterrorism. Regarding the application of established constitutional principles of separation of powers38 and checks and balances39 to counterterrorism the unitary executive theory raises profound questions. Fundamentally, according to its proponents, the theory establishes a constitutional model whereby the executive assumes extraordinary powers at the absolute expense of the judiciary and legislative branches. With respect to due processthe rights so carefully protected in the Fifth and Fourteenth Amendmentsthe Bush Administrations approach was to create paradigm that largely denied detainees this fundamental right.40 Justice Stevens dissent in Padilla addressed this directly: Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention. At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process. Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the in-formation so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.41 (emphasis added, ANG) In the due process discussion, the need to develop standards in determining when and why an individual may be detained is critical to establishing a due process predicated paradigm. As Justice Stevens dissent makes clear, the Bush Administrations detention policy with respect to post 9/11 detainees was devoid of minimal due process standards; while this was in accordance with the world view articulated by senior officials, it feel short of meeting constitutional standards. Howeverand the caveat is essentialthe appropriate query is whether 9/11 presented a threat that justified denying basic, due process rights.
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DUE PROCESS CHECKS ARBITRARY EXCERCISES OF STATE POWER; IT FORCES THE STATE TO GIVE JUSTIFICATION FOR ITS ACTIONS Scanlon, T.M. (2003). Due process. The Difficulty of Tolerance: Essays In Political Philosophy. (Cambridge: Cambridge University Press), p. 4445. But once de facto power to suspend or re is conferred, one may ask what reason there is to believe that it will not be exercised in these unjustiable ways. Thus, beyond the requirement of institutions that the power they confer be morally justiable, there is the further moral requirement that there be some effective guarantee that these powers will be exercised only within the limits and subject to the conditions implied by their justication. In some cases, nothing need be done to provide such a guarantee. It may happen that, given the motives and the scruples which those in a particular position of power can be expected to have, and given the structural features of their position (e.g. the competitive pressures active on them), there is little reason to expect that they will act outside their authority. Where this is not the case when obvious temptations or even just clear opportunities for laxness or capriciousness exist an effective counter may be provided by a system of retrospective justice, levying penalties for the improper use of power and requiring compensation for those injured. Beyond (or in addition to) this, further guarantees may be provided by introducing special requirements on the way in which those who exercise power make their decisions. Due process is one version of this latter strategy. It aims to provide some assurance of nonarbitrariness by requiring those who exercise authority to justify their intended actions in a public proceeding by adducing reasons of the appropriate sort and defending these against critical attack. The idea of such proceedings presupposes, of course, publicly known and reasonably specic rules with respect to which ofcial actions are to be justied. The authority to decide whether the reasons advanced are adequate may be assigned to different persons or bodies by different procedures. If the grounds and limits of a given decision makers authority are well known and taken seriously in a community, then even a hearing procedure that allows him to preside and pronounce the verdict may be a nonnegligible check on the arbitrary use of his power since he will presumably place some value on not being publicly seen to out the accepted standards for the performance of his job. But in general the assurances provided by a system of due process will be credible only if there is the possibility of appeal to some independent authority which can invoke the coercive power of the state to support its decisions.
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WITH EACH DUE PROCESS PROTECTION NOT EXTENDED, THE LESS THE POWER OF THE GOVERNMENT IS RESTRICTED Scanlon, T.M. (2003). Due process. The Difficulty of Tolerance: Essays In Political Philosophy. (Cambridge: Cambridge University Press), 47 Due process, as I have characterized it, will be most effective where there exist reasonably clear, generally understood standards for exercise of the authority in question, standards which can serve as the background for public justication and defense of decisions. As the relevant standards and even the starting points for arguments for and against the propriety of a given decision become less and less clear, the constraints on the decision maker in a due process proceeding become progressively weaker, and the power of these decision makers itself comes to seem more and more arbitrary. The same thing may be true when the relevant standards although they may be quite precise become less and less generally understood until nally they are the preserve of a small group including only the hearing examiners, their staff, and the main combatants.
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TERRORIST TRIALS SHOULD BE PUBLIC IN ORDER TO PROVIDE A CHECK ON GOVERNMENT POWER Flanagan-Hyde, Katherine (2006). "The public's right of access to the military tribunals and trials of enemy combatants." Arizona Law Review 48.585, lexis. In this context, public scrutiny of the trial of terror detainees provides a much needed check on potential governmental abuse. If the press does not have access to these trials, governmental abuse of the proceedings could go unreported and unnoticed by the public. In an influential concurring opinion, Justice Brennan noted that "open trials are bulwarks of our free and democratic government: public access to court proceedings is one of the numerous "checks and balances' of our system ... open trials are indispensable to First Amendment political and religious n34 freedoms." Therefore, judicial review of closure determinations is necessary to ensure that public access continues to act as a check on executive and judicial power.
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PUBLIC ACCESS TO TRIALS IS GUARANTEED BY THE FIRST AMENDMENT Flanagan-Hyde, Katherine (2006). "The public's right of access to the military tribunals and trials of enemy combatants." Arizona Law Review 48.585, lexis. The public's right of access to judicial proceedings and courts-martial is well established, and the same balancing tests for open proceedings apply to both Article III courts and military tribunals. In Richmond Newspapers, the United States Supreme Court held that "the right to attend criminal n137 trials is implicit in the guarantees of the First Amendment," and that "absent an overriding n138 interest articulated in findings, the trial of a criminal case must be open to the public." Brennan's concurring opinion stressed that the determination of whether a particular proceeding should be closed depends on "the weight of the historical practice" and "an assessment of the n139 specific structural value of public access in the circumstances."
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NOT EXTENDING DUE PROCESS PROTECTIONS GIVES THE GOVERNMENT NEARLY UNLIMITED POWER OVER NON-CITIZEN TERRORIST SUSPECTS Yin, Tung (2006). "Procedural due process to determine "enemy combatant" status in the war on terrorism." Tennessee Law Review 73: 369 Before moving past Reid and the Insular Cases, one should consider the normative implications of holding that nonresident aliens outside the United States do not have due process rights. This conclusion would leave the type of process alien detainees do receive entirely up to the executive branch, without any substantive basis forjudicial review. There would be no recourse for relief if the executive branch were to threaten torture or murder detainees.There would even be no recourse for relief if the executive branch were to detain children under the age of 5 as enemy combatants.
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THE DUE PROCESS CLAUSE APPLIES TO NON-CITIZENS ACCUSED OF TERRORISM Yin, Tung (2006). "Procedural due process to determine "enemy combatant" status in the war on terrorism." Tennessee Law Review 73: 380-381 The Due Process Clause speaks of "persons, ' 253 and from a textual perspective, the use of "person" arguably leads to broad coverage unless one demonstrates that nonresident aliens outside the country are not "persons." A contrary conclusion would lead to some truly curious results. For example, a nonresident alien would not be a "person" outside the United States, but would magically become a "person" as soon as he or she set foot inside the United States. Furthermore, when a nonresident alien acquired resident status, he or she would be "elevated" to the status of a "person"-a rather nation-centric approach. The only entities that the Court has explicitly held not to be "persons" for Due Process Clause purposes are fetuses and States. The methodology the Court used in those cases involved an examination of the Constitutional provisions mentioning "person," which resulted in the conclusion that "person" could not be used to encompass those entities.257 That same methodology, however, does not compel the conclusion that nonresident aliens are not "persons" under the Due Process Clause. The broadest reading of the Due Process Clause would simply extend all Fifth Amendment individual protections-indictment, double jeopardy, self-incrimination-to nonresident aliens in appropriate circumstances. Even then, a court could plausibly draw distinctions between the purposes of the various Fifth Amendment protections so that due process applies despite whether all provisions do. For example, corporations are "persons" for due process purposes, 258 but do not have the right against self-incrimination.
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EXTENDING DUE PROCESS IS NECESSARY TO CHECK BACK THE EXECUTIVE BRANCH AND ENSURE A SEPARATION FO POWERS Tomkiel, Melissa M. (2006) "Enemy Combatants and Due Process: The Judiciary's Role in Curbing Executive Power," Journal of Civil Rights and Economic Development Vol. 21.1, 443-445 Much concern has been expressed regarding the current Executive branch and recent attempts to increase Executive power at the expense of civil liberties. While some judicial deference to the Executive is justifiable in a time of military crisis, it is essential that the judiciary keep in mind that the current war is different from the traditional wars in our history. The "War on Terror" is an international war without a specific enemy and with no end in sight. Many of the current Administration's critics point to the Patriot Act, enacted shortly after September 11, as evidence of this attempt to increase executive power. After the September 11 attacks, President Bush presented the Patriot Act to Congress. The bill was debated in Congress for thirty minutes and was approved in the Senate by all but one vote. Critics of the Patriot Act point to it as evidence of the President's attempt to enlarge his authority and even as a means to establish an "imperial presidency." Essentially, the Patriot Act enhances the Executive's surveillance powers, giving federal agents the authority to obtain personal records and conduct searches and seizures of homes or offices without notice. The Act illustrates increasing Executive power at the expense of civil liberties integral to the American conception of freedom and emphasizes the need for the Court to confine Executive authority to its constitutional limits. Moussaoui was not the last opportunity for the Court to issue a holding that imposes limits on the Executive's authority as Commander in Chief. Indeed, the most recent rulings regarding detainees incarcerated at the United Stated naval base in Guantanamo Bay, without access to tribunals or even charges brought against them, have been remanded to the district courts to consider the merits of their habeas corpus claims. The judiciary is by no means a weak and impotent branch of government as intended by the Founders, and many of its decisions have shaped the law and society of the nation. Equipped with this power, it is imperative that the Court establish a clear and authoritative message to the Executive, demanding process for the accused and recognition of their Constitutional rights. Protecting the safety of the nation and securing it from future terrorist attacks is undoubtedly a priority for the Executive, as well as for the other two branches of government. This goal, however, can and must be achieved without jeopardizing the rights of the criminally accused. It is up to the Court to mandate that the Executive act within the confines of the Constitution when seeking to protect those liberties the Constitution was designed to secure.
12NFL1-Terrorism Due Process www.victorybriefs.com WAR PARADIGM VERSUS CRIMINAL JUSTICE PARADIGM
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CHARACTERIZING A SUSPECT AS AN ENEMY COMBATANT RATHER THAN A CRIMINAL IS USED TO JUSTIFY DIMINISHED DUE PROCESS Maureen T. Duffy [Doctoral Candidate, OBrien Fellow, Social Sciences and Humanities Research Council of Canada Fellow, McGill Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University], The Slow Creep of Complacency: Ongoing Challenges for Democracies Seeking to Detain Terrorism Suspects, Pace Intl L. Rev. Online Companion, Apr. 2010, at 42. Of course, the most obvious example of a way in which discourse can impact policies is seen through the designation of recent events as the War on Terror a designation that, itself, is the product of this new vocabulary and of terminology that was formally abandoned when the U.S. Governmental Administration changed.23 While abandoning the war terminology, however, the new U.S. administration has not entirely abandoned the structures that were created under that discourse. A terrorism suspect might now be classified as an enemy combatant, or as a criminal defendant, for essentially the same conduct, and the designation chosen is dispositive in determining the judicial process the person can expect to receive.24 If the same person were to be characterized as a suspect in criminal activity, holding the person indefinitely with no judicial process would seem unimaginable.25 Somehow, though, through an ongoing public discourse, doing so has become accepted when the detainee is suspected of terrorism involvement, and sometimes all that seems to have been required was for a government to attach this oneroussounding label to the person.26 The importance of the language used cannot be overstated, as it paints the picture under which various actions are then set forth as justified. As Orwell pointed out, language can be the impetus for bringing about a change in societal values, as well as being a reflection of cultural changes that have already taken place, with both components creating an endless loop.27
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CURRENT TERRORIST DETENTION POLICIES ARE JUSTIFIED BY INVOKING A PERMANENT STATE OF EMERGENCY Maureen T. Duffy [Doctoral Candidate, OBrien Fellow, Social Sciences and Humanities Research Council of Canada Fellow, McGill Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University], The Slow Creep of Complacency: Ongoing Challenges for Democracies Seeking to Detain Terrorism Suspects, Pace Intl L. Rev. Online Companion, Apr. 2010, at 42. Clearly, detention standards for terrorism suspects have evolved since the early days after 9/11, but what remains is that, for certain detainees, a presumption of guilt still attaches, and a presumption exists that the person should be detained, unless that person can demonstrate otherwise. Moreover, a culture allowing for preventive detention of future terrorists has arisen. The niche of terrorism has created in the minds of many a seemingly permanent state of exception, so people who might question certain governmental actions in other contexts are more muted where terrorism is at issue. While one might justify not vigorously questioning this shift in the early days after the attacks, when a sense of immediate danger may have attached, it is much more difficult to justify allowing it to continue many years after the attacks, when an environment of greater calm should prevail. The changes implemented to this end tend to be rather generalized, rather than narrowly tailored to address one expressly identified threat, and the correlation between the detention practices implemented and an effective response to terrorism is not always clear.31
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TREATING TERRORISM AS A MATTER OF SECURITY POLICY RATHER THAN CRIMINAL JUSTICE JUSTIFIES TERRIBLE SUFFERING Daniel Fischlin [Prof. of English and Theatre Studies, University of Guelph] (2008): Terrorism, Security, and Selective Rights in an Age of Retributive Fear, Review of Education, Pedagogy, and Cultural Studies, 30:3-4, 253-274 The global militarization of notions of security (and here I include torture as part of that approach) has produced a rights climate that justifies unimaginable suffering, a crude eye for an eye response that subverts basic life rights and values (Christian, Islamic, or otherwise) embedded in a global civil commons supposedly founded on the comprehensive respect for the dignity of all life at all times. The result: tortured bodies and tortured logics of ethical accommodation that have severely undermined global security, especially for those most vulnerable and defenseless, the civilians caught in the hail of bullets, smart bombs, and illegal detentions of the last years. Rights outcomes that respect the logic of the UDHRs Article 3 will never be achieved through the myth of a comprehensive militarized global response to security issues, for that response propagates insecurity and the conditions for longlasting threats to the global enactment of Article 3. Every body tortured or killed in this war for security exponentially increases the number of people affected negatively. Families, friends, and neighbors see their perilous security reality and its devastating effects on local communities while the perpetrators of torture and civilian killings return to their own secure environments, all the more dehumanized by their own actions, which in turn affect their own local communities in an ever expanding circle of trauma, suffering, fear, and violence. The shocking report by the U.S. television network CBS in 2007 on the suicide epidemic among American war veterans who in 2005 were killing themselves at the rate of 120 people per week (approximately 17 people a day or 6,256 people who died by their own hand in 2005) is one of many indicators pointing to the illusoriness of the security that militarism breeds among the very people who most directly bear the consequences of military action. That these numbers are not part of the body count tallies for the wars in Iraq or Afghanistan points to yet further perversities in grasping the consequences of militarized responses to spurious notions of global security. The unthinkable suffering that leads to these suicides is ineluctably associated with the unthinkability of the violence unleashed in the name of security by the veterans killing themselves, the unthinkability of the violence elucidated at the beginning of this essay in the monstrous excess of the numbers of rounds that have been fired in the name of security.
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A MILITARY RATHER THAN LEGAL APPROACH TO TERRORISM UNDERMINES SECURITY IN THE LONG RUN Daniel Fischlin [Prof. of English and Theatre Studies, University of Guelph] (2008): Terrorism, Security, and Selective Rights in an Age of Retributive Fear, Review of Education, Pedagogy, and Cultural Studies, 30:3-4, 253-274 Whether terrorism can be defeated by military means, as the Worldwatch Institute notes, is questionable since extremist groups do not represent easily identifiable targets. Terrorism is a path chosen by protagonists who tend to be politically desperate and militarily weak. Acts of terror are not going to disappear as long as the roots of extremist violence are not tackled (Worldwatch Institute 2005, 13). The terror associated with the fight on terror will do little to dissipate the global foundations of insecurity, promulgating instead an ever-expanding circle of retribution and injustice in which, it must be remembered, the most likely (and most numerous) victims are the innocent and the disempowered. While crude militarized responses to security threats leave longlasting damage, they also sow the seeds of long-term insecurity, laying the ground for violence and counter-violence that undermines the dignity of all life and the very principles upon which the Universal Declaration of Human Rights was founded. The ever-expanding gyre of violence, fueled by political, ideological, and economic self-interest, presents the most significant threat to global aspirations for a constructive, healthy rights environment, in which respect for life and security of person are essential. The right to meaningful security must be advocated as a right to end multiple forms of terror. The selective defense of security rights in the name of a war on terror related to the cynical pursuit of strategic interests undermines universal security rights, thus contributing to the cycles of extraordinary violence characteristic of the last century. That this defense entails acts of war in which large civilian populations are themselves terrorized is scandalous. The terror associated with the war on terror does little to dissipate the global foundations of insecurity. Instead it promulgates an open-ended feedback loop of retribution and injustice in which the most likely (and most numerous) victims are the innocent and the disempowered. So . . . let us remember with the greatest of care the names of the dead as if they held the power to forget us as if the merchants of greed and cowardice who dare not even count their bodies could be done away with by the simple power of naming in memory of every cruel death as if every bullet ever fired was aimed at you. . . as if you had died at every Ground Zero that ever was . . .
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APPLICATION OF DETENTION PROCEDURES UNDER THE LAWS OF WAR IS PROBLEMATIC FOR THE WAR ON TERRORISM BECAUSE THE SCOPE OF THE BATTLEFIELD IS UNDEFINED Laurie R. Blank [Director, International Humanitarian Law Clinic, Emory University School of Law], Square Peg in a Round Hole: Stretching Law of War Detention Too Far, 63 Rutgers L. Rev. 1169 (Summer 2011). [*1175] Traditionally, the law of neutrality provided the guiding framework for the parameters of the battle space in an international armed conflict. When two or more states are fighting and certain other states remain neutral, the line between the two forms the divider between the n14 application of the laws of war and the law of neutrality. The law of neutrality is based on the n15 and focuses on three main goals: (1) fundamental principle that neutral territory is inviolable "contain[] the spread of hostilities[, particularly] by keeping down the number of participants;" (2) "define[] the legal [rights of] parties and nonparties to the conflict;" and (3) "limit[] the impact of n16 war on nonparticipants, [especially] with regard to commerce." In this way, neutrality law leads to a geographic-based framework in which belligerents can fight on belligerent territory or the n17 commons but must refrain from any operations on neutral territory. In essence, the battle space in a traditional armed conflict between two or more states is anywhere outside the n18 sovereign territory of any of the neutral states. The language of the Geneva Conventions tracks this concept fairly closely. Common Article 2, which sets forth the definition of international armed conflict, states that such conflict occurs in "all cases of declared war [*1176] or ... any n19 In other armed conflict which may arise between two or more of the High Contracting Parties." Common Article 3, non-international armed conflicts include conflicts between a state and nonstate armed groups that are "occurring in the territory of one of the High Contracting Parties." n20 Both of these formulations tie the location of the armed conflict directly to the territory of one or more belligerent parties. The neutrality framework as a geographic parameter is left wanting in today's conflicts with terrorist groups, however. First, as a formal matter, the law of neutrality technically only applies in n21 cases of international armed conflict. Even analogizing to the situations we face today is highly problematic, however, because today's conflicts not only pit states against nonstate actors but because those actors and groups often do not have any territorial nexus beyond wherever they can find safe haven from government intrusion. As state and nonstate actors have ... shifted unpredictably and irregularly between acts characteristic of wartime and those characteristic of not-wartime[,] ... the unpredictable and irregular nature of these shifts makes it difficult to know whether at any given moment one should understand them as armies and their enemies or as n22 police forces and their criminal adversaries. Simply locating terrorist groups and operatives does not therefore identify the parameters of the battlefield; the fact that the United States and other states use a combination of military operations and law enforcement measures to combat terrorism blurs the lines one [*1177] might look for in defining the battlefield. In many situations, "the fight against transnational jihadi groups n23 ... largely takes place away from any recognizable battlefield."
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DETENTION OF TERRORISM SUSPECTS IN THE WAR ON TERROR HAS A DECIDEDLY PUNIITVE CHARACTER Laurie R. Blank [Director, International Humanitarian Law Clinic, Emory University School of Law], Square Peg in a Round Hole: Stretching Law of War Detention Too Far, 63 Rutgers L. Rev. 1169 (Summer 2011). (Note: LOAC stands for Law of Armed Conflict) First, the general discourse emanating from the U.S. government over the past nine years demonstrates that both the Bush and Obama administrations ultimately view the detainees at Guantanamo as "terrorists" rather than as "suspected terrorists." Although this may seem to be a semantic point, it lays the first stone in the foundation for the punitive detention framework we now see. Numerous statements by high-level government officials - including the President n84 n85 confirm this attitude of detaining "the worst of the worst" or "committed terrorists" or n86 "killers." Second, indefinite detention is often presented as an alternative to either Article III n87 This view of the options for criminal trials or prosecutions before military commissions. addressing detainee questions suggests that detention is in lieu of prosecution; that is, detention n88 is a reasonable alternative when prosecution is not a viable option. However, law of war detention is not an alternative to prosecution - the central focus of both POW detention and civilian detention for security reasons under the Fourth Geneva Convention is not criminal n89 prosecution but protective and preventive detention. To suggest that the United States can either prosecute detainees or hold them in indefinite detention is equivalent to suggesting that detention is another form of punishment. Rather, as the above discussion demonstrates, the law of war envisions detention without charge solely for those held in protective or preventive custody. Persons who are accused of criminal activity are to be tried either as war criminals for violations of the law of war or within the domestic criminal system for those who have violated domestic penal law. Both the Third and Fourth Geneva Conventions provide fundamental rights to those accused of criminal activity, including the right to be informed of the charges, the right to [*1190] assistance of counsel, and the right n90 to appeal, for example. Punitive detention within the law of war context thus must involve notification of charge, a trial, and basic rights commensurate with such a process. Indeed, the Conventions consistently emphasize that a regular trial is a "safeguard [that] is absolutely general. It applies to all accused persons, even those who are charged with having contravened n91 the Geneva Conventions themselves." When, as here, persons are held in indefinite detention as a substitute for prosecution rather than for protective and preventive purposes, the detention takes on decidedly punitive characteristics. One of the strongest factors pointing to a punitive detention framework is that the United States views the detainees at Guantanamo as criminals for the sole fact that they took part in hostilities against American and allied forces without any lawful n92 belligerent's privilege. In some cases, individuals designated for indefinite detention "under the laws of war" are so designated because the government has decided that it cannot try them - for reasons of evidentiary shortcomings or coercive statements - even though it ordinarily would n93 prosecute them. Holding such persons without charge for an indefinite, and potentially decades-long, period of time can only be characterized as punitive - the United States is detaining them because of what they did, as a substitute for prosecution.
12NFL1-Terrorism Due Process www.victorybriefs.com PROCEDURAL FAIRNESS
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SHIFTING DUE PROCESS STANDARDS FOR THOSE ACCUSED OF TERRORISM MAGNIFY THE UNFAIRNESS IN THE PROSECUTION OF NON-CITIZENS. Maureen T. Duffy [Doctoral Candidate, OBrien Fellow, Social Sciences and Humanities Research Council of Canada Fellow, McGill Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University], The Slow Creep of Complacency: Ongoing Challenges for Democracies Seeking to Detain Terrorism Suspects, Pace Intl L. Rev. Online Companion, Apr. 2010, at 42. Those detained since 9/11 may not only be unable to rely on the detention standards that existed before 9/11, but they cannot rely either on the standards set in place since that date, since even those parameters constantly shift, in large part because of the tension between national judiciaries and executive/legislative branches. In many cases, without assistance from legal counsel that, before 9/11, would have been deemed fundamental, many detainees have been in the unenviable position of facing proceedings under conditions of serious mistreatment, in a language other than their mother tongues, in a system different from that which they might know in their countries of origin, and under rules that shift so constantly that it can sometimes be difficult even for legal scholars to stay current.93
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THE KIYEMBA COURT UNDERMINED THE RIGHT OF ALIENS TO HABEAS CORPUS BY DENYING THEM AN APPROPRIATE REMEDY Shea Esterling [Tutor in Law, Aberystwyth University]. Putting the Terror in Territorial: Reflections on the Global War on Terrorism and U.S. Detention Policy, Journal of Terrorism Research, Volume 2, Issue 3 (Law Special Edition). November 2011. Furthermore in announcing the principle that the courts cannot admit a non-citizen into the U.S. by its own authority, the Kiyemba court claws back the fragile constitutional gains that the Supreme Court offered non-citizen detainees in Boumediene by eviscerating the constitutional protection of habeas corpus. [46] And so we ask again: what law authorized the district court to order the government to bring petitioners to the United States and release them here? It cannot be that because the court had habeas jurisdiction, it could fashion the sort of remedy petitioners desired. The courts in Knauff and in Mezei also had habeas jurisdiction, yet in both cases the Supreme Court held that the decision whether to allow an alien to enter the country was for the political departments, not the Judiciary. [47] In doing so the court has ignored that habeas corpus is both a right and a remedy and without the latter the former becomes meaningless. Indeed, its entire function is to prevent unlawful imprisonment springing from an excess of Executive power [48] by offering the right to challenge the legality of detention and the typical remedy has been release. [49] In turn, Kiyemba violates one of the laws most basic tenets that for every wrong there must be a remedy. As Chief Justice Marshall noted in Marbury v Madison, [t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. [50] However, in Marbury the Supreme Court could not issue a remedy as it lacked the jurisdiction; [51] demonstrating that in reality not every wrong receives a remedy as there remain the practical requirements of proof of the violation of a right and the power to exercise jurisdiction in order to issue relief.
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THE KIYEMBA COURT WRONGLY RELIED ON IMMIGRATION LAW TO REFUSE A REMEDY FOR NON-CITIZENS HABEAS PETITIONS Shea Esterling [Tutor in Law, Aberystwyth University]. Putting the Terror in Territorial: Reflections on the Global War on Terrorism and U.S. Detention Policy, Journal of Terrorism Research, Volume 2, Issue 3 (Law Special Edition). November 2011. The court in Kiyemba achieved this ability to deny a remedy by asserting that it lacked the later; the power to exercise jurisdiction by placing it within the strictures of immigration law. [52] However, this ignores that it is inappropriate to apply the framework of immigration law to the detainees in this particular case as well as the other Guantanamo Bay detainees as they were brought to Guantanamo against their will rather than voluntarily as is typical in immigration cases. [53] Moreover, even if this does not distinguish the Guantanamo Bay detainees and so they are properly within the immigration context, it also ignores the developments in immigration law in Zadvydas [54] and more appropriately Martinez, albeit is a precarious victory, where the Supreme Court through statutory interpretation ruled that where the Government cannot effectuate the removal of an inadmissible non-citizen indefinite detention is not permissible. [55] Finally, regardless of the immigration context, the court in Kiyemba undoubtedly after Boumediene has jurisdiction over the issue as this federal district courts possesses habeas jurisdiction; the power to determine whether the detainment of an individual is lawful or an abuse of Executive power and in the case of the latter to order the remedy of release to be free from unlawful detention. Therefore, neither the proof of the violation of a right and the power to exercise jurisdiction in order to issue relief are at issue here. However, the Kiyemba court still denied the remedy of release typically associated with habeas corpus by placing this analysis within the strictures of the immigration context. Ultimately, it is this placement that is at the root of the judicial deference in Kiyemba as it allows courts to apply the doctrine of plenary power. Indeed, the doctrine of plenary power also has been at the root of the deference in the case of the Marielitos. As regards the Marielitos, the Supreme Court explicitly refused to grant them and other non-citizens in a similar position any constitutional rights but rather decided Martinez on the grounds of the statutory interpretation of an immigration law consistent with the doctrine of plenary power. [56]
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THE ABSENCE OF A WORKABLE LEGAL FRAMEWORK FOR DETAINING SUSPECTED TERRORISTS UNDER THE LAWS OF WAR INCREASES THE LIKELIHOOD OF WRONGFUL DETENTION Laurie R. Blank [Director, International Humanitarian Law Clinic, Emory University School of Law], Square Peg in a Round Hole: Stretching Law of War Detention Too Far, 63 Rutgers L. Rev. 1169 (Summer 2011). [*1179] At present, no workable legal framework exists for identifying the parameters of the battlefield and thus for assessing whether an individual captured in course of counterterrorism operations was so captured within an armed conflict or as part of a law enforcement operation outside the bounds of an existing conflict. U.S. practice suggests that any identifiable parameters to the zone of combat are driven solely by case-by-case considerations rather than the n34 application of a defined legal paradigm. This problem raises serious concerns for the application of law of war detention as the defining paradigm for detention of terrorist suspects. If, in essence, law of war detention is detention of persons "picked up on the battlefield," the failure to identify the battlefield greatly undermines the practical application of this framework. Rather, we run the grave risk of detaining people within this paradigm who were not captured on the battlefield, that is, within the parameters of this armed conflict.
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THE ABSENCE OF CLEARLY DEFINED TEMPORAL BOUNDARIES FOR THE WAR AGAINST TERRORISM MAKE LAW OF WAR DETENTIONS DIFFICULT TO MANAGE WITHIN THE EXISTING LEGAL FRAMEWORK Laurie R. Blank [Director, International Humanitarian Law Clinic, Emory University School of Law], Square Peg in a Round Hole: Stretching Law of War Detention Too Far, 63 Rutgers L. Rev. 1169 (Summer 2011). (Note: LOAC stands for Law of Armed Conflict) In contrast, the nature of terrorism and counterterrorism is that we are not going to defeat n45 terrorism; rather, terrorism is something to be managed, minimized, and defended against. At the most basic level, "[a] war against groups of transnational terrorists, by its very nature, lacks a n46 well-delineated timeline." Not only can we not envision an end to the hostilities, but more problematic, we have absolutely no way of identifying what that end might look like. Terrorist groups morph, splinter, and reconfigure, making it difficult to determine if, let alone when, they have been defeated. Although traditional notions of repatriation at the end of hostilities may offer helpful guidance in a geographically confined conflict with a nonstate actor or terrorist group, such n47 as the Tamil Tigers in Sri Lanka, the diffuse geographical nature of most conflicts with terrorist groups generally makes traditional temporal concepts unlikely to apply effectively to such conflicts. In a conflict with transnational terrorist groups, we will not see a surrender ceremony, the equivalent of V-E Day, or any other identifiable moment marking the end of the conflict. In fact, the traditionally broad parameters for applying LOAC so [*1182] as to maximize protection for all persons in the combat zone only serve to exacerbate these temporal ambiguities. In Prosecutor v. Tadic, the International Criminal Tribunal for the former Yugoslavia ("ICTY") held that the temporal and geographic limits range beyond the exact time and place of n48 hostilities. The Tribunal declared that "international humanitarian law applies from the initiation of ... armed conflicts and extends beyond the cessation of hostilities until a general conclusion of n49 peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved." There is no doubt that this broad scope plays a critical role in protecting both fighters and civilians alike in all types of armed conflicts by ensuring the application of the law across the theater of conflict even if hostilities are not taking place in that exact location or at that exact time. In the context of terrorism, however, this broad framework can easily lead to a definition paralysis n50 because it is unlikely that a "general conclusion of peace" will be achieved in any foreseeable period of time, if ever. Thus, the United States might defeat al-Qaeda in some meaningful way, ending their ability to launch any effective attacks against the United States or its allies. n51 But, some other terrorist group will take up - or have already taken up - the same fight, and the United States will still be engaged in a conflict with terrorist groups. The consequence of this uncertainty and this very nature of terrorism is that detention until the end of hostilities effectively means generational, if not lifetime, detention because applying concepts such as "cessation of active hostilities" or "general close of military operations" can lead to conflicts - and detention - that continue ad infinitum. n52 Such detention is on another scale entirely [*1183] from law of war detention as traditionally understood or conceived. In this way, the problems of definition in both the geographic and temporal realms pose nearly intractable problems for the application of law of war detention to the detention of terrorist suspects in the current context. Law of war detention fundamentally involves detaining persons captured in the course of an armed conflict or occupation (whether persons who are fighting or civilians detained for reasons of security under the Fourth Geneva Convention) until the end of the conflict or occupation. Without the ability to delineate where an armed conflict is taking place or even frame the conditions under which it can be termed "over," imposing "law of war" detention on such a framework is extraordinarily problematic at best and immoral at worst.
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THOUSANDS HAVE BEEN DETAINED ON A VARIETY OF CHARGES BECAUSE OF THE MERE POSSIBILITY THAT THEY ARE TERRORISTS Dickinson, Laura (2002). "Using legal process to fight terrorism: detentions, military commissions, international tribunals, and the rule of law." Southern California Law Review 75:1407: 1414-1415. Because of intense secrecy surrounding the governments activities, it is difficult to determine precisely how many people have been placed in secret preventive detention in the United States since September 11, 2001. In early November 2001, when the number was 1147, the government responded to growing criticism of the number of persons it was detaining by refusing to release further information. The vast majority of the detainees appear to have been held on pretextual immigration charges. Others have been detained as material witnesses in undisclosed criminal investigations. Immigration detainees have been tried in proceedings closed to the public, the press, legal observers, and family members. Indeed, immigration judges do not even list the cases on the public docket, and refuse to confirm or deny that the cases even exist. Moreover, many of those detained on immigration charges have been held for weeks or even months without any charges at all. As David Cole has noted, the Justice Department practices, taken together, amount to a policy of lock up first, ask questions later, and presume that an alien is dangerous until the FBI has a chance to assure itself that the individual is not. Indeed, Cole points out that, under the governments sleeper theory, the fact that a suspicious person has done nothing illegal only underscores his dangerousness; Al Qaeda is said to have sleeper cells around the world, groups of individuals living quiet and law-abiding lives, but ready and willing to commit terrorist attacks once they get the call. Under this theory, the absence of evidence of illegal conduct is not a reason to release a suspicious person. Given this rationale, it is not surprising that the number of detainees far surpasses the number who appear to have any connection to terrorism. And these detentions, of course, do not even include the hundreds of people being confined by the military in Guantanamo Bay, Cuba, Afghanistan, or elsewhere throughout the world.
12NFL1-Terrorism Due Process www.victorybriefs.com HUMAN RIGHTS
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THE UNITED STATES HAS PERPETRATED EXTREME HUMAN RIGHTS ABUSES IN THE NAME OF THE WAR ON TERROR Daniel Fischlin [Prof. of English and Theatre Studies, University of Guelph] (2008): Terrorism, Security, and Selective Rights in an Age of Retributive Fear, Review of Education, Pedagogy, and Cultural Studies, 30:3-4, 253-274 The Amnesty International Report 2005 unequivocally reports that in 2004 the US-led war on terror continued to undermine human rights in the name of security, despite growing international outrage at evidence of US war crimes, including torture, against detainees (Amnesty International Americas). Further, in specific relation to national security and the war on terror, AI found that the blatant disregard for international human rights and humanitarian law in the war on terror continued to make a mockery of President George Bushs claims that the United States was the global champion of human rights (ibid.). The August 2004 Fay-Jones Report, which examined the conditions of prisoners at the Abu Ghraib prison in Iraq, summarized a lengthy list of abuses perpetrated by U.S. military personnel in defiance of the Geneva Conventions that apply to prisoners of war, including physical abuse (from restricted breathing to dislocation of joints resulting from enforced restraint or stress positioning of inmates), use of dogs (including forcing detainees to defecate in front of dogs), humiliating and degrading treatments, nakedness, degrading photographs, simulated sexual positions, improper use of isolation, failure to safeguard detainees, failure to report detainee abuses, and sleep adjustment techniques (Greenberg and Dratel 2005, 10701104). Over and above this list were further incidents that included possible rape, the withholding of medical care, bananas inserted into detainees anuses, sodomy of inmates, and the striking of genitals. Many of these techniques that are violations of international law, let alone of natural justice, were applied in Guantanamo Bay, Cuba, by American soldiers as well. Irene Khan, Secretary General of AI, reports that the U.S. government has, in the name of seeking security in its war on terror, gone to great lengths to restrict the application of the Geneva Conventions and to redefine torture. It has sought to justify the use of coercive interrogation techniques, the practice of holding ghost detainees (people in unacknowledged incommunicado detention) and the rendering or handing over of prisoners to third countries known to practice torture. The detention facility at Guantanamo Bay has become the gulag of our times, entrenching the practice of arbitrary and indefinite detention in violation of international law. Trials by military commission have made a mockery of justice and due process (Amnesty International Report 2005 2005, Foreword).
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PRISONERS IN GUANTANAMO BAY SUFFER SIGNIFICANT HUMAN RIGHTS ABUSES Daniel Fischlin [Prof. of English and Theatre Studies, University of Guelph] (2008): Terrorism, Security, and Selective Rights in an Age of Retributive Fear, Review of Education, Pedagogy, and Cultural Studies, 30:3-4, 253-274 BBC News and AI reports on the treatment of detainees at Guantanamo allege torture that included the threat of rape, beatings, physical abuse including being urinated on, forced feedings for hunger-striking prisoners, the lack of due process in open and transparent courts, exposure to extreme temperatures, noise and light, cultural and religious abuse, and repeated attempts at suicide among multiple prisoners (including mass suicide attempts), all compromised by lack of open access by international agencies and their lawyers to the prisoners. In all of these four basic principles of torture are at work: sensory deprivation and assault (through hooding or sensory overload), a brutally effective form of psychological torture that leads to breakdown6; self-inflicted pain (through, for instance, standing in held positions for extended periods); attacks on culturally sensitive areas involving religion, gender, and sexuality; and preying on individual phobias and fears. These degrading, venal, and highly damaging torture techniques violate established human rights norms, whether at the level of the Universal Declaration of Human Rights (UDHR) or specific clauses of the Geneva Conventions. Further, they represent profound violations of principles of natural justice that underlie those norms. The UNs 2006 joint report on the situation of Guantanamo detainees was explicit. Recommendation 96 of the report states that The United States Government should close the Guantanamo Bay detention facilities without further delay and all special interrogation techniques authorized by the Department of Defense should immediately be revoked (Situation of Detainees at Guantanamo Bay 2006, 3839). Like the use of so-called administrative detentions in the Occupied Territories, a practice condemned by AI in which [Palestinian] detainees are held without charge or trial. No charges are filed, and there is no intention of bringing a detainee to trial (AI Administrative Detention) and like other illegal and undemocratic strategies used to disappear people (whether in Latin America or any number of other places globally where these sorts of practices are or have been used), the abhorrent practices of rendition, torture, rights abuses, and dehumanization that Guantanamo represents are pressing and serious threats to democracy and the global rights scenario. They are so because they normalize the slippage from hard-won principle to unregulated expediency that threatens the rights of all peoples who are subject to state power of any kind.
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THE STATUS QUO GIVES THE GOVERNMENT TOTAL AND EXCLUSIVE CONTROL OVER THE BODIES OF TERRORIST SUSPECTS Parry, John (2007). "Terrorism and the new criminal process." William & Mary Bill of Rights Journal 15.3: 795. The characteristics of the traditional criminal process and trial resonate with history and with ideas of due process to form a system that is widely perceived as fair both in the aggregate and in most individual cases. The perception of fairness in the federal system also derives from the separation of powers. Life-tenured judges and the requirement of jury trials provide examples of separation of powers at work in the traditional criminal trial, and they serve as counterweights to executive power. Significantly, this familiar model of separated power goes beyond control of power at the highest levels and beyond providing counterweights in the machinery of lawmaking, law enforcement, and legal interpretation. Separation of powers is also, and at least as importantly, about fragmenting the government's ability to exercise power over individual lives and preventing total control over people's bodies, minds, and circumstances. Robert Cover accurately observed that "[l]egal interpretation takes place in a field of pain and death,"' but separation of powers may lower the body count. Because separation of powers constraints are lowered for the new criminal process, officials have greater control over the present circumstances and ultimate fate of the defendant. Detention, coercive interrogation, military trial, and punishment, summary or otherwise, form an overall approach that treats the suspected terrorist or associate of terrorists as a person over whose body and circumstances the government should exercise total and exclusive power. To many readers, this will seem a patently illegitimate goal, but if the magnitude of the threat of terrorism is sufficiently great, one can easily imagine the argument that such an approach is justified, although perhaps only as a temporary measure.
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NON-CITIZENS ARE OTHERIZED TO JUSTIFY DISCRIMINATORY SECURITY MEASURES Maureen T. Duffy [Doctoral Candidate, OBrien Fellow, Social Sciences and Humanities Research Council of Canada Fellow, McGill Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University], The Slow Creep of Complacency: Ongoing Challenges for Democracies Seeking to Detain Terrorism Suspects, Pace Intl L. Rev. Online Companion, Apr. 2010, at 42. Although a number of underlying presumptions might be identified as having fueled the initial antiterrorism responses of national governments, perhaps the most prominent one, and the one that will be assessed in this article, is the notion of the Other. Although this concept has considerable theoretical underpinning, put in its most simple form, it involves classifying a particular group with characteristics, beginning with aspects of the group that differ from those of ones own group.36 National origin, religion, race, gender, and citizenship provide the most easy and obvious mechanisms under which people are seen as the Other, and this one-dimensional way of viewing certain groups makes it much easier to view those groups as different, and to thus attribute characteristics to the group as a whole. In the case of the post-9/11 responses, an obvious and widespread example of this phenomenon seems to have related to citizenship. It is apparent from a number of the national responses to the attacks that there was an underlying presumption that non-citizens of a given country were more likely than citizens to be terrorists. It is not uncommon for national governments, when faced with perceived threats, to tighten their borders and to view non-citizens with some suspicion.37 That the horrors of 9/11 were allegedly committed by 19 men, who were not citizens of the U.S., and who claimed to act in the name of Islam, likely had a heavy role in shaping the form of the response. After 9/11, a number of governments expressly instituted security measures that applied only to non-citizens, or enhanced the use of such existing structures. The forms varied, and some of the governments that implemented this initial response have since modified their approaches.38
12NFL1-Terrorism Due Process www.victorybriefs.com INDEFINITE DETENTION
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US DETENTION POLICIES HAVE WORLDWIDE SCOPE AND THREATEN INDEFINITE DETAINMENT Owen Fiss [Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School], Aberrations No More, Utah Law Review, No. 4 (2010). pp. 1085-1099. Bush also instituted a detention policy that threatened another principle of our constitutional orderwhat I have elsewhere called the principle of freedom.2 This principle prohibits the executive from incarcerating anyone without charging that individual with a crime and swiftly bringing him to trial. There are exceptions to this principle, including one for war. Under this exception, the executive is allowed to detain enemy combatants captured on the battlefield and hold them for the duration of hostilities. Bush invoked this exception and then construed it in a way that threatened to undermine the very values that the principle of freedom seeks to protect. Bush did not confine himself to imprisoning persons seized in Iraq, Afghanistan, or even the mountainous region between Afghanistan and Pakistan. Rather, he treated the entire world as if it were a battlefield, even to the point of seizing persons within the United States, including American citizens, and treating them as enemy combatants. Bush also refused to place any temporal limits on this policy of imprisonment without trial and was prepared to incarcerate persons for prolonged, indefinite periods of timemaybe for life. Although he said he would hold these individuals only until the end of the War on Terror or, more modestly, until the end of the war against Al Qaeda, the end of this war is not readily foreseeable. Even if Osama Bin Laden were captured, new leadership is likely to emerge, and in any event, the many cells of Al Qaeda are capable of acting on their own. Extending the exception to the principle of freedom for wartime captures to a never ending war of this sort threatens to undermine the principle itself.
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THOUSANDS OF PEOPLE ARE PRESENTLY HELD IN A STATE OF INDEFINITE DETENTION BY THE UNITED STATES Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 In the criminal law paradigm, a suspects remand requires independent judicial authorization; in the Military Commissions model, a detainees remand would require neither judicial authorization nor review. While Boumediene42 held that enemy combatants detained in Guantanamo have a constitutionally guaranteed right of habeas corpus review43 and Judge Bates held in Maqaleh v. Gates that some prisoners held by the U.S. military base in Afghanistan captured outside the zone of combat have a right to challenge their imprisonment the reality is the following: thousands of detainees are presently helddirectly or indirectlyby the U.S. in a detention paradigm that can best be described as indefinite detention44 While uncertainty perhaps ambiguity45was understandable in the immediate aftermath of 9/11, it is incomprehensible nine years later.
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FAILURE TO MEANINGFULLY DEFINE WHAT CONSTITUTES A THREAT TO NATIONAL SECURITY INEVITABLY LEADS TO INDEFINITE DETENTION OF INNOCENT PEOPLE Amos N. Guiora (Professor of Law, S.J. Quinney College of Law, the University of Utah), Due Process and Counterterrorism, ExpressO, Available at: http://works.bepress.com/amos_guiora/1 Failing to institutionalize independent judicial review of detention decisions directly resulted in the significant number of detainees held indefinitely. If there are no criteria for determining what actions pose a threat to American national security the detentions are reflective of an approach best described as round up the usual suspects. This is not a policy; it is a tragic reality of the past eight years. Indefinite detention, perhaps, sounds attractive for it removes from the zone of combatindefinitely--individuals suspected of involvement in terrorism. The qualifier perhaps is essential to the discussion for its inherent unconstitutionality has a pervasive affect on U.S. counterterrorism. Furthermore, the lack of articulated criteria for initial detention and subsequent remand alike inevitably guarantee that individuals have been wrongly detained precisely because threat has not been defined.
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY TRIBUNALS
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THE OBAMA ADMINISTRATION HAS CONTINUED THE PRACTICE OF TRYING NONCITIZENS BEFORE MILITARY COMMISSIONS AS A GENERAL RULE AND FAILED TO ARTICULATE CRITERIA FOR EXCEPTIONS TO THIS POLICY Owen Fiss [Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School], Aberrations No More, Utah Law Review, No. 4 (2010). pp. 1085-1099. In contrast to Bush, Obama has been reluctant to treat the United States as part of the battleground against Al Qaeda and the Taliban. Accordingly, he placed within the ambit of the criminal justice system two terrorist suspects who were seized in the United States on his watch. One was an American citizen attempting to detonate a bomb in Times Square62 and the other a citizen of Nigeria attempting to detonate a bomb on a Northwest Airlines flight as it was about to land in Detroit.63 Yet, Obama invoked the war exception to the principle of freedom as the basis for continuing the imprisonment without trial of prisoners being held in Guantnamo and at the Bagram Air Force base in Afghanistan. Bush had claimed this power as commander in chief. Anxious to avoid the unilateralism of Bush, Obama did not invoke his authority as commander in chief to justify this policy, but instead relied on the statute passed by Congress immediately after 9/11, which did no more than authorize the president to use force in responding to the terrorist attacks on that day. Although on occasion Bush tried Al Qaeda suspects in civilian courts, he also claimed the authority to try some before military commissions and did so without announcing the criteria to govern the choice between tribunals. Obama claims the same authority. Obama made headlines when he first announced that he would try the alleged mastermind of 9/11, Khalid Sheik Mohammed, in the Southern District Court of New York,64 but the controversy that erupted over this announcement should not blind us to the fact that Obama is prepared to try some of the Guantnamo prisoners before military commissions and now is in the process of doing so. Like Bush, Obama has failed to announce any meaningful criteria governing this choice of tribunal.
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THE OBAMA ADMINISTRATIONS WILLINGNESS TO USE MILITARY TRIBUNALS MAKES CLOSING GUANTANAMO AN EMPTY GESTURE Owen Fiss [Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School], Aberrations No More, Utah Law Review, No. 4 (2010). pp. 1085-1099. Obama has sought to follow through on his promise to close Guantnamo, and in December 2009, announced his plan to transfer the remaining Guantnamo prisoners to a prison in Thomson, Illinois. This plan has encountered congressional resistance and has not yet been implemented. It should be emphasized, however, that once Obama decided, as he did in May 2009, to continue the practice of using military commissions for the trial of some of the Guantnamo prisoners and to continue the policy of holding other Guantnamo prisoners for prolonged, indefinite detention without trial, the closure of Guantnamo has become a gesture of doubtful significance. Guantnamo became an object of public controversy and disapprobation, not just because it was viewed as a site where prisoners were tortured, but also because Bush had planned to use military commissions to try some of the prisoners being held there and to continue the imprisonment of others being held there without affording them a trial of any type. The notoriety of Guantnamo had also arisen because Bush insisted that it lay beyond the reach of habeas corpus. It had become something of a legal black hole.68 The June 2008 Boumediene decision relieved Obama of the need to take a position on the availability of the writ of habeas corpus to the Guantnamo prisonersthe Supreme Court rejected Bushs position69but Obama has tried to limit the scope of that ruling, and in so doing, further denied the act of closing Guantnamo of much of its meaning. Obamas lawyers have argued in open court that the Boumediene decision should be confined to Guantnamo alone and that the prison at Bagram to which terrorism suspects from the four corners of the earth had been broughtwas beyond the reach of the Constitution.
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THE DECISION TO USE MILLITARY TRIBUNALS TO TRY SUSPECTED TERRORISTS IGNORES MODERN UNDERSTANDINGS OF DUE PROCESS Owen Fiss [Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School], Aberrations No More, Utah Law Review, No. 4 (2010). pp. 1085-1099. In the midst of an ongoing conflict, military commissions have been convened on the battlefield and used to try enemy soldiers accused of war crimes. Now and then, we departed from this tradition; for example, in World War II a military commission was used, with the reluctant approval of the Supreme Court, to try Nazi soldiers who had entered the country for purposes of sabotage.8 Bushs decision to use military commissions in Guantnamo built on this precedent and ignored the intervening advances in our understanding of due process that occurred during the Warren Court era. Bushs plan also vastly expanded the jurisdiction of military commissions. It contemplated using military commissions to try a group of prisoners that had been incarcerated for years at Guantnamo, far from any battlefield. And it did not limit the commissions to trying offenses that were proscribed by the laws of war. In this way, Bush had effectively transformed the military commission from a tribunal of necessity to one of convenience, giving the prosecution advantages that are anathema to the constitutional dictates of due process. Under Bushs scheme, trials of Guantnamo prisoners were to be carried out by military officers subject to supervision by an official in the Department of Defense.9 The rules of evidence permitted the introduction of a wider range of hearsay evidence than would be allowed in federal court. Any evidence that had probative value was admissible. There were no protections against the use of confessions obtained by coercion or even torture. The accused could be convicted on the basis of evidence that neither he nor his counsel saw or heard. The accuseds choice of counsel also was strictly circumscribed. In addition, Bushs commissions compromised the accuseds right to trial by jury and the right to a speedy and public trial.
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MILITARY COMMISSIONS HAVE EXTREMELY WEAK PROTECTIONS AGAINST SELFINCRIMINATION AND COERCED CONFESSIONS Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010). The Fifth Amendment to the Constitution makes clear that "[n]o person. . . shall be compelled in any criminal case to be a witness against himself . . ." n57 The Supreme Court has clearly articulated the self-incrimination clause ra-tionale for excluding coerced statements in federal courts. n58 The Supreme Court has also recognized a Fourteenth Amendment due process rationale for excluding statements in federal courts where they are the product of coercive interrogation methods. n59 As a general rule, federal courts do not admit statements of a defendant in criminal pro-ceedings unless the law enforcement or [*133] other federal official taking the statement issued Miranda warnings before the statements were made. n60 There are two exceptions to the Miranda rule possibly germane to the federal court detainee proceedings in New York. The first is the public safety exception addressed in New York v. Quarles. n61 In Quarles, however, the time-sensitive nature of the question, "Where is the gun?" was key. n62 In certain of the detainee cases, it may not be so relevant. The second possible Miranda exception applicable to certain detainees relates to foreign interrogations and the fact that courts have not extended Miranda to questioning by foreign officials overseas, n63 unless they are working jointly with U.S. officials or the interrogation would "shock the judicial conscience." n64 The Congress has taken a very different view of Miranda for detainees held outside the United States and tried by military commission. In the 2009 amendments to the 2006 MCA, n65 Congress barred enemy combatants in military custody held outside the United States from being read Miranda warnings, absent a court order. n66 Though Miranda does not apply, detainees tried by military commission do have a statutory right against self-incrimination. Under the 2009 amendments to the MCA, all detainee statements obtained through torture, or "cruel, inhuman or degrading treatment" are inadmissible in military commission proceedings, regardless of when taken. n67 Similarly, a detainee before a military commission may not be required to testify against himself. n68 The 2009 amendments to the MCA do provide an opportunity to consider incriminating statements of detainees where the commission is satisfied the [*134] statements are trustworthy. Specifically, the amendments provide that for statements to be admissible, the military commission must determine: (1) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) that (A) the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence, or (B) the statement was voluntarily given. n69
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MODERN FEDERAL RULES ALLOW FEDERAL COURTS TO HAVE ALMOST IDENTICAL PROCEDURES AS MILITARY COMMISSIONS FOR PROTECTING CLASSIFIED EVIDENCE Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010). One of the dilemmas facing prosecutors when trying persons associated with al Qaeda is the risk of disclosing clas-sified information that could be useful to terrorist elements. Because of the Sixth Amendment requirement that "the [*137] accused shall enjoy the right . . . to be confronted with the witnesses against him," n89 the risk of disclosing classified information critical to successful prosecution presents a very real concern. This dilemma was a leading factor in the enactment of the Classified Information Procedures Act ("CIPA"), which aims to prevent the disclosure of classi-fied information during criminal litigation while simultaneously providing the accused with sufficient information to craft a defense. n90 The Federal Rules of Criminal Procedure and CIPA both authorize federal judges to prevent the disclosure of classified information to the defendant in cases where nondisclosure would not prejudice his rights. n91 Under these procedures, the judge may authorize the prosecution to provide substitute statements, or an unclassified summary, provided this alternative gives the defendant a real opportunity to challenge the prosecution's evidence. In that regard, the redaction of any classified evidence may exclude sources and methods of intelligence gathering that do not go to the substance of what the evidence states, but rather simply do not identify the operatives or methods used. In all cases, however, the substitute must provide sufficient context such that the defendant has a real opportunity to discount or discredit the authenticity of the information being presented. The protection of classified information and its disclosure in military commissions is addressed in the 2009 amendments to the Military Commissions Act. n92 As amended, the MCA procedures are nearly identical to the practice under CIPA in federal courts. Under the 2009 procedures, the presiding military judge must allow the introduction of otherwise admissible evidence "while protecting from disclosure the sources, methods, or activities" through which the evidence was obtained. n93 The military judge may also order an in camera hearing to determine how the evidence shall be handled. n94 The accused may be excluded from such hearings as long as his attorney, who must have an appropriate security clearance, is permitted to argue for the release of the information on behalf of his client. n95 Under these procedures, the accused will have the opportunity to review all evidence actually submitted into the record and considered by the commission members. n96
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MILITARY COMMISSIONS OFFER NOTHING EVEN CLOSE TO DUE PROCESS PROTECTIONS Dickinson, Laura (2002). "Using legal process to fight terrorism: detentions, military commissions, international tribunals, and the rule of law." Southern California Law Review 75:1407: 1417-1418. On closer examination, however, these increased protections turn out to be of almost no benefit to the accused at all. To begin with, even on their own terms, the regulations still fall far short of offering meaningful due process guarantees. For example, although the accused may hire civilian counsel, that counsel must be a United States citizen admitted to the Bar and must possess a security clearance. Moreover, even with such a clearance, counsel may still be denied access to evidence or be prevented from attending actual proceedings of the trial. In addition, although the regulations specify that proceedings should be open to the maximum extent practicable, they still give broad unreviewable authority to the commission to close the proceedings to the public as well as to the accused and civilian defense counsel. Furthermore, the members of the commission must be commissioned officers of the U.S. armed forces. While defendants may appeal to a panel that can include civilians, those civilians must also have received commissions as military officers. Even more importantly, neither the commissions nor the appeal body is actually authorized to make binding final judgments. Rather, their rulings are only recommendations to the Secretary of Defense or the President. And, indeed, Secretary of Defense Rumsfeld has indicated that prisoners may continue to be detained even if acquitted by the commissions.
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THE STATUS QUOS LOOPHOLES ALLOWED A DETAINEE TO BE TORTURED AND THEN HAVE THEIR COERCED TESTIMONY BE USED AGAINST THEM IN A MILITARY COMMISSION Lunday, Kevin & Harvey Rishikof (2008). Due process is a strategic choice. California Western International Law Journal 39.1: 102-103. The current preventive detention regime also damages the strategic legitimacy of the United States because it applies a legal double standard for treatment and interrogation of detainees, depending not upon the status of the detainee but the agency affiliation of the government custodian. The DTA established a minimum standard for detainee treatment and interrogation for all persons detained under the control of the Department of Defense (DoD), requiring that no person under DoD control may be subjected to a list of specific interrogation techniques not authorized by the standing U.S. Army Field Manual on interrogation. For non-DoD agencies however, the DTA applies only a minimum constitutional standard, prohibiting cruel, inhuman or degrading treatment or punishment that, considered under a totality of the circumstances, violates the Fifth, Eighth, or Fourteenth Amendments. This dichotomy allows non-DoD personnel to conceivably engage in coercive interrogation methods that may be otherwise prohibited for use by DoD personnel. The MCA not only reaffirmed this dual standard for detainee treatment, but also specifically authorized the use of a detainees coerced testimony before a military commission.
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS UNDERMINE THE RULE OF LAW
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Koh, Harold Hongju (2002), "The Case Against Military Commissions." Faculty Scholarship Series. Paper 2107. http://digitalcommons.law.yale.edu/fss_papers/2107 The Military Order's specific legal deficiencies have received extensive commentary and are cogently summarized in a recent letter to the chair of the Senate Committee on thejudiciary signed by more than seven hundred American law professors. " On its face, the order authorizes the Department of Defense to dispense with the basic procedural guarantees required by the Bill of Rights, the International Covenant on Civil and Political Rights (ICCPR), and the Third Geneva Convention of 1949."1 Insofar as any of these guarantees-which include the presumption of innocence, the rights to be informed of charges and to equal treatment before the courts, public hearings, independent and impartial decision makers, the rights to speedy trial, confrontation, and counsel of one's own choosing, the privilege against selfincrimination, and review by a higher tribunal according to law-are subject to suspension in time of emergency, the Bush administration has taken no formal steps to enable it to derogate from them.'" By omitting these guarantees, the Military Order violates binding U.S. treaty commitments under both the ICCPR and the Third Geneva Convention.'"
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS UNDERMINE THE SEPARATION OF POWERS
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Koh, Harold Hongju (2002), "The Case Against Military Commissions." Faculty Scholarship Series. Paper 2107. http://digitalcommons.law.yale.edu/fss_papers/2107 Fundamentally, the Military Order undermines the constitutional principle of separation of powers. For under the order, the president directs his subordinates to create military commissions, to determine who shall be tried before them, and to choose the finders of fact, law, and guilt. However detailed its rules and procedures may be, a military commission is not an independent court, and its commissioners are not genuinely independent decision makers. Historically, a military commission is neither a court nor a tribunal, but "an advisory board of officers, convened for the purpose of informing the conscience of the commanding officer, in cases where he might act for himself if he chose."'" Commissioners are not independent judges, but usually military officers who are ultimately answerable to the secretary of defense and the president, who prosecute the cases. 1 '"Such blending of functions in one branch of the Government," Justice Black recognized, "is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers."
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MILITARY COMMISSIONS SIGNAL THE USS LACK OF COMMITMENT TO MORAL VALUES Koh, Harold Hongju (2002), "The Case Against Military Commissions." Faculty Scholarship Series. Paper 2107. http://digitalcommons.law.yale.edu/fss_papers/2107 These specific legal deficiencies stand atop a much broader rule-of-law concern. International law permits the United States to redress the unprovoked killing of thousands on September 11, 2001, by itself engaging in an armed attack upon the Al Qaeda perpetrators. But should those culprits be captured, the United States must try, not lynch, them to promote four legal values higher than vengeance: holding them accountable for their crimes against humanity; telling the world the truth about those crimes; reaffirming that such acts violate all norms of civilized society; and demonstrating that law-abiding societies, unlike terrorists, respect human rights by channeling retribution into criminal punishment for even the most heinous outlaws. The Military Order undermines each of these values. First, military commissions create the impression of kangaroo courts, not legitimate mechanisms of accountability. Second, rather than openly announcing the truth, commissions tend to hide the very facts and principles the United States now seeks to announce to the world. Third, because military tribunals in Burma, Colombia, Egypt, Peru, Turkey, and elsewhere have been perceived as granting judgments based on politics, not legal norms, the United States Department of State has regularly pressed to have cases involving U.S. citizens heard in civilian courts in those countries.
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS UNDERMINE THE USS MORAL LEADERSHIP
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Koh, Harold Hongju (2002), "The Case Against Military Commissions." Faculty Scholarship Series. Paper 2107. http://digitalcommons.law.yale.edu/fss_papers/2107 The use of military commissions potentially endangers Americans overseas by undermining the U.S. government's ability to protest effectively when other countries use such tribunals. But just as troubling, espousing military commissions undermines U.S. moral leadership abroad when that leadership is needed the most." The United States regularly takes other countries to task for military proceedings that violate basic civil rights. How, then, can the United States be surprised when its European allies refuse to extradite captured terrorist suspects to U.S. military justice? When the Chinese or Russians try Uighur or Chechen Muslims as terrorists in military courts, U.S. diplomats protest vigorously and the world condemns those tribunals as anti-Muslim. How, then, can the United States object when other countries choose to treat U.S. military commissions the same way?
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS UNDERMINE THE WAR ON TERROR
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Koh, Harold Hongju (2002), "The Case Against Military Commissions." Faculty Scholarship Series. Paper 2107. http://digitalcommons.law.yale.edu/fss_papers/2107 To win a global war against terrorism, nations that lay claim to moral rectitude and fidelity to the rule of law must not only apply, but also be universally seen to be applying, credible justice. Credible justice for international crimes demands tribunals that are fair and impartial both in fact and in appearance. By their very nature, military tribunals fail this test. Even if, through tinkering, the Defense Department's regulations could ensure that military commissions will operate more fairly in fact, they will never be perceived as fair by those skeptical of their political purpose, namely, the very Muslim nations whose continuing support the United States needs to maintain its durable coalition against terrorism. Ironically, the more the Defense Department tries to address the perceived unfairness of military tribunals by making them more "courtlike"-more transparent, with more procedural protections, more independent decision makers, and more input into their design by the legislative branch-the more these modifications will eliminate the supposed "practical" advantages of having military tribunals in the first place, yet without dispelling the fatal global perception of unfairness.
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DOMESTIC COURTS ARE AS IF NOT MORE EFFECTIVE THAN MILITARY COMMISSIONS Ip, John (2012). Military Commissions and Discrimination Against Non-Citizens. THE PSYCHOLOGY OF PREJUDICE: INTERDISCIPLINARY PERSPECTIVES ON CONTEMPORARY ISSUES, Nova , 2012. http://ssrn.com/abstract=2031694 However, this skepticism about the effectiveness of the criminal justice system and the federal courts in terrorism cases is largely unwarranted. Since 9/11, the criminal justice system has proven quite resilient and effective in dealing with terrorism cases with both citizen and noncitizen defendants. John Walker Lindh, Richard Reid, and Zacarias Moussaoui were all processed through the federal courts (Moeckli, 2008). More recently, both Farouk Abdulmutallab (the underwear bomber) and Faisal Shahzad (the Times Square bomber) were dealt with by the criminal justice system -- both eventually pleaded guilty prior to trial (Savage, 2011). These are just the most well-known examples of the successful use of the criminal justice system to prosecute terrorism cases; there are many others (Kris, 2011). Overall, the record of the federal courts compares favorably with the system of military commissions, which by 2011 had completed a mere handful of trials (Roach, 2011).
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS ARE A FORM OF DISCRIMINATION
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Ip, John (2012). Military Commissions and Discrimination Against Non-Citizens. THE PSYCHOLOGY OF PREJUDICE: INTERDISCIPLINARY PERSPECTIVES ON CONTEMPORARY ISSUES, Nova , 2012. http://ssrn.com/abstract=2031694 The equal protection of the law in this context requires that persons accused of the same crimes be tried for those crimes in the same forum, unless there is some good reason for doing otherwise (Moeckli, 2008). However, as noted above, only non-citizens have ever been eligible for trial before the military commissions established after 9/11. The categorical exclusion of citizens from the jurisdiction of the military commissions amounts to a form of differential treatment on the grounds of citizenship. It reserves better treatment for citizens and relegates non-citizens to an inferior form of justice. Significantly, this bar applies regardless of the threat that a citizen might pose, or the gravity of the terrorist offences that a citizen might have committed. In other words, an American citizen will always be dealt with by the criminal justice system in federal court. (Katyal, 2007; Moeckli, 2008). A non-citizen, by contrast, may also be tried in federal court, but is potentially exposed to trial before military commission.
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS LEAD TO A CRISIS OF LEGITIMACY
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Ip, John (2012). Military Commissions and Discrimination Against Non-Citizens. THE PSYCHOLOGY OF PREJUDICE: INTERDISCIPLINARY PERSPECTIVES ON CONTEMPORARY ISSUES, Nova , 2012. http://ssrn.com/abstract=2031694 The upshot of this is that the military commissions, independent of whether they are held to be discriminatory or not as a matter of American legal doctrine, suffer from a legitimacy deficit that is due in no small part to their limitation to non-citizens (Moeckli, 2008). This lack of legitimacy has consequences. Some of these are concrete: for example, military commissions have proven to be an obstacle to cooperation between the United States and its European allies in terrorism cases (Katyal, 2007; Moeckli, 2008). Conversely, the federal courts have the international respect that military commissions lack, so employing them facilitates cooperation from international allies (Kris, 2011). More generally, illegitimacy may affect the willingness of members of the public, particularly Muslim-Americans, to cooperate with authorities. In the case of both conventional law enforcement and counterterrorism, the willingness of people to cooperate with the authorities has been found to be strongly correlated with perceptions of fairness (Schulhofer et al., 2011). Further, the willingness of people to report suspicious activity is particularly sensitive to their perceptions of overall systemic fairness (Schulhofer et al., 2011, p. 374). So, to the extent that singling out non-citizens for military commissions is perceived as being unfair, or as being part of a battery of counterterrorism measures that unfairly single out minority groups, the willingness of people to report suspicious activity to the authorities may also be reduced. Finally, a conviction (and the subsequent sentence) handed down by a military commission is likely to be viewed with suspicion on account of the inferior quality of the trial forum and its procedures. A conviction in federal court may be harder to secure, but, because the federal courts and the criminal justice system operate under well established and respected procedures, the flipside is that such a conviction is far more likely to stand up to both contemporary public scrutiny and the judgment of history (Glazier, 2008, p. 200).
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MILTARY COMMISSIONS ARE RIPE FOR APPEAL; THIS WILL LEAD TO COURT CLOG Kris, David (2011). "Law enforcement as a counterterrorism tool." Journal of National Security Law & Policy 5.1: 50-51. The civilian criminal justice system enjoys an advantage over both military commissions and law of war detention with respect to the certainty of its rules and the finality of its results. The federal courts have years of experience trying and convicting dangerous criminals, including international terrorists, and the rules are well-established and understood. To be sure, there is substantial litigation in many federal terrorism prosecutions, and some of the more complex cases may present novel legal issues. But while military commissions have long roots in American history during times of armed conflict, the current commissions are essentially a new creation, and they do not have the body of established procedures and years of precedent and experience to guide the parties and the judges. This invites, if it does not guarantee, challenges to virtually every aspect of the commission proceedings the legality of the system, the jurisdiction of the court, the lawfulness of certain offenses, the rules on the use of evidence derived from coerced statements, discovery obligations, and the nature of protective orders (among others). Indeed, legal challenges to the new commissions authorized by the 2009 MCA were initiated in the fall of 2009 and early 2010. While most of these challenges have recently been dismissed as moot, the underlying substantive issues have not been resolved yet, meaning that we may not have confidence in military commission convictions until each case works its way up to the Supreme Court a process that could take years.
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MILTARY COMMISSIONS ARE RIPE FOR APPEAL; GITMO PROVES THAT THIS WILL LEAD TO COURT CLOG Kris, David (2011). "Law enforcement as a counterterrorism tool." Journal of National Security Law & Policy 5.1: 51-52. Similarly, habeas challenges to law of war detention for Guantnamo Bay detainees have raised claims about every aspect of that process, including the rules for the proceedings and even the basic scope of the governments detention authority. While trial judges have varied in their understanding of who can be detained and what evidentiary procedures and sources of law apply, some of the most significant substantive and procedural questions have recently been resolved by the court of appeals. Nevertheless, it will likely take a substantial period of time before the appellate review of Guantnamo cases has developed the degree of uniformity or predictability that we have after many years of trying terrorism and other criminal cases in federal court. Whether law of war detention is even legally available for individuals who are apprehended in the United States is another major area of uncertainty (and controversy), as litigation on that issue has yielded diverse opinions from our courts.
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DOMESTIC CRIMINAL COURTS ARE MORE LIKELY TO GET A CONVICTION THAN MILITARY COMMISSIONS, THERE ARE MULTIPLE REASONS Kris, David (2011). "Law enforcement as a counterterrorism tool." Journal of National Security Law & Policy 5.1: 55-59. The criminal justice system is a tool with broader application in many instances than either military commissions or law of war detention. The criminal justice system can be used against any person who has violated our criminal laws, whether here or abroad, if our laws apply extraterritorially, as many of them do. In contrast, the government interprets the 2001 AUMF, as informed by law-of-war principles, as authorizing detention of those who are part of, or who substantially support, Taliban, al Qaeda, or associated forces that are engaged in hostilities against the United States or its coalition partners. Individuals who are part of or supporting other terrorist groups like Hamas, Hizbollah, or the FARC are not subject to the AUMF based solely on that membership; nor are lone-wolf terrorists who may be inspired by al Qaeda but are not part of it. There is also a question whether law of war detention extends to persons apprehended in the United States. The application of military commissions is in some ways even narrower: Not only must a defendant be an unprivileged enemy belligerent with the requisite connection to al Qaeda or the Taliban, he must also be a foreign national. U.S. citizens like Jos- Padilla, John Walker Lindh, and Anwar Awlaki cannot be prosecuted by military commission, even if they are part of al Qaeda or associated forces. In our criminal justice system, Congress has enacted a vast array of federal laws that criminalize most types of terrorist conduct, including terrorist acts abroad against U.S. nationals, material support to terrorism or a designated terrorist organization, harboring terrorists, terrorist financing, receiving military training from a terrorist organization, narco-terrorism, hostage taking, aircraft piracy, sea piracy, bombings of public places, WMD-related offenses, and many others, as well as conspiracies to commit these crimes. (To the extent that these statutes were recently enacted or amended, they may not be available to charge older crimes, and criminal charges under Title 18 require some jurisdictional nexus to the United States or its interests, often specified in the elements of certain extraterritorial crimes. In addition to pure terrorism-related offenses, as I have explained, prosecution of ordinary crimes can also neutralize terrorists just as Al Capone was convicted of tax fraud rather than murder. In contrast, a military commission has limited jurisdiction only to prosecute violations of the laws of war and offenses traditionally triable by military commissions.
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DOMESTIC CRIMINAL COURTS HAVE INCENTIVES FOR COOPERATION THAT MILITARY COMMISSIONS LACK Kris, David (2011). "Law enforcement as a counterterrorism tool." Journal of National Security Law & Policy 5.1: 60-61. The criminal justice system has mechanisms to encourage cooperation by detainees that do not exist in law of war detention or are not as wellestablished or extensive in military commissions. As I have explained, the criminal justice system has long-standing experience with proffer agreements, plea agreements, pre-sentencing incentives available under the U.S. Sentencing Guidelines, and post-sentencing incentives available under the Federal Rules of Criminal Procedure. These tools can be used to encourage cooperation and obtain intelligence. The governments promises to the defendant are judicially enforceable, and the defendants failure to follow through on his promises can be sanctioned, which increases the likelihood that cooperation agreements will be made and honored. In the military commission system, Rule 705 provides a mechanism similar to a plea agreement which is based on an analogous procedure used in the courts-martial system. Through it, the parties may negotiate a pre-trial agreement, including an agreement to cooperate and an applicable sentencing range. However, this system and its effectiveness in obtaining cooperation in a military commission case where the equivalent of the jury does the sentencing, the cases can take years to resolve, and there has been no significant experience with cooperation to date is not yet well tested. Moreover, there are no sentencing guidelines, no mandatory minimums, and no track record that can be used to set the parameters for any negotiations, which may make it more difficult to come to an agreement. Nor is there an extensive practice of post-conviction, presentencing cooperation, particularly for a substantial period of time (as may be required in complex terrorism cases), or an established post-sentencing cooperation mechanism in military commissions. The federal courts, in contrast, have all of these tools readily available for use.
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MILITARY COMMISSIONS ARE INCAPABLE OF INCENTIVIZING COOPERATION Kris, David (2011). "Law enforcement as a counterterrorism tool." Journal of National Security Law & Policy 5.1: 61-62. In sum, in law of war detention, the absence of enforceable mechanisms for balancing conditions and duration of confinement against cooperation may in some cases reduce the incentive for cooperation-based intelligence collection. Similarly, in military commissions, the absence of specific mechanisms to facilitate cooperation that are as well-established or extensive as in federal courts, contributes to making bargaining more unpredictable, and thus potentially less effective, in that forum. Plea bargaining is essentially a market transaction, and markets work best where there are clear, enforceable rules of contract and associated traditions. These rules and traditions do not spring up overnight; as in all systems, they take time to develop. Moreover, they develop best when the alternatives are clear, such as when the governments authority to detain for a long, fixed period is unquestioned. A terrorist detained in the criminal justice system knows that the system itself is impregnable, and if the government has a strong case he will go to prison for a long time. A terrorist detained under the law of war, particularly if he is initially apprehended in the United States, faces an entirely different situation, in which the validity of the system is subject to challenge, the extent of his rights and the governments power is less certain, and the duration of his confinement is indefinite. Likewise, in the military commission system, in addition to prevailing uncertainty about the system as a whole, the practical operation and usefulness of specific cooperation mechanisms imported from the courts-martial system remains unclear. The incentives created by uncertainty in both of the military systems may not lead to quick and effective cooperation.
12NFL1-Terrorism Due Process www.victorybriefs.com INTERNATIONAL COURTS
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THERE IS NO INTERNATIONAL LEGAL BASIS FOR PROSECUTING TERRORISTS; THE COURTS MUST BE NATIONAL COURTS Lang, Anthony (2010). The politics of punishing terrorists. Ethics & International Affairs 24.1: p.6 Importantly, when national institutions respond to international crimes, it is not always clear which community is being constituted; that is, it is not clear what political context underlying the legal decision is most important. Are sentences issued by national courts in response to international crimes a reection of their own national experiences? Can those responses be part of the construction of a larger international community? What is the relationship between these contexts? Terrorism in particular provides important insights into the complicated process by which national courts address international crimes. The drafters of the 1998 Rome Treaty that created the ICC chose to leave this crime outside its ambit, a political decision that partly reected the difculty in dening terrorism, an essential step in criminalizing a practice. This decision, controversial at the time, prevented the international community from turning to criminal law in response to the attacks of 9/11 and the rise of such global terrorist networks as al-Qaeda. Thus, there is no legal basis for a truly international response to the crime of terrorism, which is today largely addressed through national court structures; and, consequently, responses to terrorism remain mingled with national agendas and interests. 5 Yet, clearly, terrorists have been held, tried, and punished in a wide range of contexts, some less in accordance with the rule of law than others (for example, at Guantanamo Bay). One recent attempt to address an international terrorist incident through a national political structurewherein a convicted terrorist was released by Scottish authoritiesreveals the inherently political nature of crime and punishment.
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ONLY DOMESTIC ARTICLE III COURTS CAN PROVIDE JUSTICE; INTERNATIONAL TRIBUNALS WILL BE UNSUCCESSFUL Koh, Harold Hongju (2002), "The Case Against Military Commissions." Faculty Scholarship Series. Paper 2107. http://digitalcommons.law.yale.edu/fss_papers/2107 While I have long supported international adjudication, I am skeptical about the international community's ability to overcome existing political obstacles and create a fair international tribunal quickly."' International tribunals make the most sense when there is no functioning municipal court that could fairly and efficiently try the case, as happened in the former Yugoslavia and Rwanda. But even if the United States government were to support such a tribunal here (which it seems unlikely to do), at least two other permanent members of the Security CouncilRussia and China-would probably withhold their consent from any body that might pursue trials of Chechen or Uighur rebels whom they have labeled as domestic "terrorists." Recent history shows that building new international tribunals from scratch is slow and expensive and requires arduous negotiations. Although proponents claim that an international tribunal would be more likely to be viewed as impartial than a U.S. court, it is unclear why an ad hoc tribunal created for the express purpose of trying the September 11 terrorists and their supporters would find greater acceptance throughout the Muslim world than thejudgments of a civilian court system that has been in place for more than two centuries. Finally, those who believe that an international tribunal with M uslimjudges would ensure "Muslim buy-in" into the international adjudicatory process should recall that the last United Nations gathering before September 11 was the World Conference Against Racism, in which several Islamic countries sought to use the forum to pursue their political grievances against Israel. Many of the same countries would doubtless use their diplomatic clout to argue that any UN tribunal to try terrorists should also try Israeli officials who bore no connection to the September 11 attacks, an alternative that potential Western signatories to the tribunal would surely reject. We should not conclude, therefore, that only international tribunals can grant meaningful justice for international crimes. Absent extant, functioning international tribunals, the most credible justice will be delivered by time-tested domestic judicial institutions, such as the United States' Article III courts and courts-martial.
12NFL1-Terrorism Due Process www.victorybriefs.com ENEMY COMBATANT DESIGNATIONS
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DUE PROCESS PROTECTIONS ARE STRIPPED AWAY IN THE STATUS QUO BECAUSE OF THE ENEMY COMBATANT DESIGNATION Radack, Jesselyn (2005). "You say defendant, I say combatant: opportunistic treatment of terrorism suspects held in the US and the need for due process." Review of Law & Social Change 29.525: 545. Today, there is no due process protection for detainees like Padilla and Hamdi. "Enemy combatant" status strips detainees of their judicial due process rights and is defectively constitutionally. The executive branch is acting without regard to the Due Process Clause; it is placing "the security of the majority above the constitutional guarantee of liberty protected by due process." Until recently, the judicial branch has been rubber-stamping rather than checking the executive's plenary power and has been upholding the President's war powers as more potent than the Fifth Amendment, which was the same mistake made in Korematsu.
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CITIZENS AND NON-CITIZENS ARE SPORADICALLY AND ARBITRARILY GIVEN DIFFERENT SETS OF DUE PROCESS PROTECTIONS BASED ON THE ENEMY COMBATANT DESIGNATION Radack, Jesselyn (2005). "You say defendant, I say combatant: opportunistic treatment of terrorism suspects held in the US and the need for due process." Review of Law & Social Change 29.525: 527-528. "American Taliban" John Walker Lindh was transferred from the military system to the civilian legal system, with a promise to return him to the military system if he violates his plea agreement. US citizen and "dirty bomb" suspect Jose Padilla was arrested on a material witness warrant, detained in federal jail and appointed counsel, declared a "military combatant" a month later, and then ordered released by a federal appeals court a year and half later. British national Richard Reid, the convicted "shoe bomber," received the benefits of the civilian legal system while US citizen Yaser Hamdi faced the military system. The criminal justice system was used to convict Iyman Faris, a truck driver from Ohio who admitted in June 2003 that he was involved in a conspiracy by Al Qaeda to destroy the Brooklyn Bridge, yet the government is considering dropping the criminal case against French national Zacarias Moussaoui, the alleged "20th hijacker," in order to re-designate him as an enemy combatant and try him before a military tribunal. Most recently, Qatari graduate student Ali Saleh Kahlah al-Marri, described by federal prosecutors as an al Qaeda "sleeper operative," was designated an enemy combatant. The government dropped criminal charges against him less than a month before his trial, making him the first terrorism suspect in the US to be declared an enemy combatant after being criminally charged. This followed an unsuccessful attempt by the prosecution to gal a-Marri's case dismissed without prejudice so they would have the option to move him back tot he civilian justice system at some point.
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THE ENEMY COMBATANT LABEL IS USED ONLY WHEN THERE ISNT ENOUGH EVIDENCE TO ACTUALLY ACHIEVE A CONVICTION IN A FEDERAL COURT Radack, Jesselyn (2005). "You say defendant, I say combatant: opportunistic treatment of terrorism suspects held in the US and the need for due process." Review of Law & Social Change 29.525: 540-541. There seems to be no rhyme or reason to the current crop of "enemy combatant" classifications. "Almost every possible variation of combinations of facts has been explored--with completely inconsistent results." The benign answer to the disparate classifications is that the government is holding certain suspects, like Padilla and Hamdi, only for intelligence-gathering and national security purposes. The more cynical answer is that "when the Administration has sufficient evidence to bring a case in federal court that they know they can win, they do so ironically, those who can easily be convicted are offered full due process only the most plainly guilty receive the benefit of the presumption of innocence, and the chance to mount a counsel-assisted defense. Under this theory, the government does not have enough evidence to try Padilla, Hamdi and al-Marri criminally and the enemy combatant route provides a way to sidestep the requirements and protections of the criminal justice system--but as US citizens, Padilla and Hamdi would not even be eligible for trial by a military commission.
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THE GOVERNMENT USES THE ENEMY COMBATANT DESIGNATION TO COERCE THE COURT ROOM PROCESS Radack, Jesselyn (2005). "You say defendant, I say combatant: opportunistic treatment of terrorism suspects held in the US and the need for due process." Review of Law & Social Change 29.525: 541. An even more disturbing explanation is that the enemy combatant label is being used to coerce the criminal process. In the Buffalo "Lackawanna Six" case involving defendants being accused of belonging to a terrorist sleeper cell, a defense attorney explained, "We had to worry about the defendants begin whisked out of the courtroom and declared enemy combatants if the case started going well for us." US Attorney Michael Battle, whose region encompasses the Yemeni community in Lackawanna, "said his office never explicitly threatened to invoke enemy combatant status but that all sides knew the government held that hammer." In explaining the defendants' heavy-handed plea bargain, he admitted, "You had a new player on the block [The Defense Department], and they had a hammer and an interest These are learned defense counsels, and they looked at the landscape and realized that, you know, they could have a problem." According to government officials, Iyman Faris also is said to have "cooperated with the FBI because he sought to avoid being declared an enemy combatant."
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THERE IS NO ACCOUNTABILITY FOR WHETHER A SUSPECT IS LABELED AN ENEMY COMBATANT, THE CRITERIA FOR BEING AN ENEMY COMBATANT ARE CLASSIFIED Tomkiel, Melissa M. (2006) "Enemy Combatants and Due Process: The Judiciary's Role in Curbing Executive Power," Journal of Civil Rights and Economic Development Vol. 21.1, 414 The criteria for classification of a detainee as an "enemy combatant" is kept secret by those responsible for making the determination, namely the Attorney General, the Secretary of Defense, and the CIA director. As Solicitor General Ted Olsen explains about the enemy combatant distinction, "[t]here will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances." This elusive definition results in the indefinite detention of a diverse pool of defendants and has presented the courts with significant problems in delineating the authority of the Executive and balancing national security interests against the Constitutional rights of the accused.
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NEGATIVE EVIDENCE
CONSTITUTIONAL ARGUMENTS THE DUE PROCESS CLAUSE OF THE 5 AMENDMENT DOES NOT APPLY TO NONCITIZENS OUTSIDE OF THE UNITED STATES Shea Esterling [Tutor in Law, Aberystwyth University]. Putting the Terror in Territorial: Reflections on the Global War on Terrorism and U.S. Detention Policy, Journal of Terrorism Research, Volume 2, Issue 3 (Law Special Edition). November 2011. (Brackets in Original Document) The Due Process Clause of the Fifth Amendment provides that the U.S. Government cannot deprive any person of liberty without due process of law. [2] This constitutional protection extends to all persons within the jurisdiction of the U.S. regardless of their legal status. [3] In its understanding of a person, the Supreme Court has made physical presence in the U.S. a requirement for constitutional Due Process protections to apply. In Shaughnessy v. United States ex rel. Mezei, [Mezei] the Supreme Court stated: It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a different footing: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned. [4] In essence, Mezei stands for the principle that an alien [non-citizen] [5] outside of the territory of the U.S. does not qualify as a person for the purposes of the constitutional protection of Due Process. Although a seemingly uncontroversial principle of territoriality simply denying the extraterritorial application of the Constitution to non-citizens, it has served as the source of the indefinite detention of the Marielitos and Guantanamo Bay detainees who have been subject to a denial of Due Process.
TH
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CONGRESS HAS RECOGNIZED THAT THE PRESIDENT HAS THE AUTHORITY TO DETAIN SUSPECTED TERRORISTS IN ORDER TO PROTECT U.S. NATIONAL SECURITY INTERESTS Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010). [*130] While the President and Congress share responsibility for detainee matters, the detention and prosecution of unlawful combatants rests solely with the Executive. Early in the present conflict, the Congress passed Senate Joint Resolution ("SJR") 23, n38 which recognizes that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." n39 Additionally, the resolution specifically authorizes the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist acts that occurred on September 11, 2001, or har-bored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. n40 Thus, Congress in SJR 23 has specifically endorsed not only the use of appropriate military force, but also the included authority to detain and try enemy combatants to prevent them from conducting further hostilities against this nation. Under the provisions of the MCA, as amended in 2009, n41 the Secretary of Defense has established regulations for the conduct of commission proceedings. The jurisdiction of any military commission is limited to a time of war. Only offenses recognized under the law of war or designated by statute may be tried by military commission. The MCA further provides that only aliens may be tried. n42
12NFL1-Terrorism Due Process www.victorybriefs.com PREVENTATIVE DETAINMENT IS CONSTITUTIONAL
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Madeline Morris, Frances Eberhard, & Michael Watsula (2009). "After Guantanamo: war, crime, and detention." Harvard Law and Policy Review Online 3, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2630&context=faculty_scholarship&se i A legal framework for counterterrorism detention, rigorously designed and carefully implemented, can be constitutionally sound,16 consistent with international law, and effective in preventing attacks. Preventive detention has long been used in the United States in circumstances involving mental illness,17 contagious disease,18 criminal prosecution,19 and certain other categories of dangerincluding armed conflict.20 In each instance, the ordinary legal inducements, civil liabilities, and criminal sanctions are, for reasons specific to that context, unlikely to elicit the degree of compliance necessary to adequately reduce the risk posed. The proposed legislative framework for counterterrorism detention is constructed to comport with and to build upon the legal principles and safeguards developed in those existing and judicially- tested systems of preventive detention.
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS VERSUS FEDERAL COURTS
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THE DUE PROCESS PROTECTIONS OFFERED BY MILITARY COMMISSIONS HAS IMPROVED UNDER THE OBAMA ADMINISTRATION, THOUGH THE TRIBUNALS STILL HAVE SIGNIFICANT SHORTCOMINGS Owen Fiss [Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School], Aberrations No More, Utah Law Review, No. 4 (2010). pp. 1085-1099. As a senator, Obama voted against the Military Commissions Act of 2006, which not only barred habeas corpus, but also authorized the use of military commissions to try foreign nationals being held as unlawful enemy combatants.65 As president, Obama sponsored the Military Commissions Act of 2009.66 Admittedly, the principal purpose of this legislation was to strengthen the evidentiary rules governing military commissions. Under the Act, all coerced testimony was barred, the accused was given a reasonable opportunity to obtain evidence and witnesses, the governments obligation to disclose exculpatory evidence was expanded, and the accused was given the right to examine any evidence offered at trial. Moreover, the political officer convening a military commission was prohibited from punishing members of the commission for any of their rulings. Still, the basic structural shortcoming of the commissiontrial by military officerspersists. Indeed, the 2009 Act, building on Bushs initial Executive Order of November 2001 and the Military Commissions Act of 2006, represents a further institutionalization of military commissions as an irregular alternative the executive might chooseon criteria we will never knowfor the prosecution of unlawful, or now, unprivileged enemy combatants. Much like the 2006 Act and Bushs November 2001 Executive Order, the 2009 Act defined the offenses that could be tried before a commission to include crimes, such as giving material aid to a belligerent, that could not properly be considered crimes under the laws of war.67 The irregular nature of these military commissions was underscored by a provision in the 2009 Act, also present in the 2006 Act and the 2001 Executive Order, confining them to the trial of foreign nationals.
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MILITARY COMMISSIONS HAVE SIGNIFICANT PROCEDURAL SAFEGUARDS Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 Defendants before the Military Commissions are assured of many procedural safeguards. First, the proceeding is generally required to be full and fair. Defendants are presumed innocent until proven guilty beyond a reasonable doubt. They have the right to call and cross-examine witnesses. Although the attorney-client privilege does not apply in the same manner in which it applies in proceedings before Article III courts, nothing said by a defendant to his attorney, nor anything derived therefrom, may be used against him. No negative inference will be made should a defendant choose to remain silent. Military Defense Counsel is provided free-of-charge to all defendants, or the defendant may hire an attorney of his own choosing provided that the attorney is a citizen of the United States who is admitted to practice in a jurisdiction of the United States, has not been the subject of disciplinary action, obtains a Secret level clearance and agrees to follow the rules of the military commission. Furthermore, after the panel has reached a verdict and imposed a sentence, the trial record must be reviewed by the Appointing Authority, a threemember Review Panel of military officers, one of which must have prior experience as a judge, and the Secretary of Defense. The President has the final decision authority over the case, which he may delegate to the Secretary of Defense. The President or Secretary of Defense may change a guilty verdict to a guilty verdict on a lesser-included offense or otherwise mitigate, commute or defer the sentence but may not change a not guilty verdict to a verdict of guilty. 57
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MILITARY COMMISSIONS ARE BETTER AT PROTECTING SENSITIVE INFORMATION, PROTECTING COURT EMPLOYEES, AND HAVE MORE FLEXIBLE RULES OF EVIDENCE THAN ARTICLE III COURTS Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 A first and very pressing argument in support of the use of military commissions is the argument that military commissions allow the government to protect sensitive information that would have to be publicly disclosed if the case were heard before an Article III court. Second, many argue that ordinary trials would expose all those involved in the judicial system, including court staff, judges, attorneys and jurors to the threat of retaliation by terrorists, a threat which the civilian judicial system is not equipped to handle. Third, military commissions operate with more flexible rules of evidence than civilian courts. The rules of evidence used in military commissions allow the introduction of all relevant evidence. 62 In his Military Order, President Bush stated that 'it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district COurtS.'63 Other rights not accorded prisoners detained under the Military Order include the right to counsel during interrogation and the requirement of a unanimous verdict. 64 These standards likely will lead to a higher conviction rate than a trial before an international tribunal or Article III court would attain. 65
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MILITARY COMMISSIONS ARE AN EXTENSION OF THE U.S. MILITARY CAMPAIGN AGAINST TERRORIST GROUPS Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 Another argument in favor of military commissions is that the commissions are an extension of the United States' military campaigns in the War on Terrorism. This argument is supported by Section l(d) of the Military Order, quoted supra. Proponents of this argument see the military commissions as an exercise of the United States' right as a sovereign nation to capture and bring to trial terrorists who have killed or plan to kill American citizens or otherwise attack or injure the United States. They further argue that even though the use of military commissions may bring international criticism, the United States risks greater damage if accused terrorists are able to take advantage of the more liberal rules and privileges accorded to defendants in Article III courts. 66
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MILITARY COMMISSIONS MAY IMPOSE THE DEATH PENALTY, A PUNISHMENT FAVORED BY MOST AMERICANS Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 A final argument in support of military commissions is that military commissions often impose the death penalty. Although a death penalty is available in trials before Article III courts, it is not available in international commissions under the auspices of the United Nations, including the ICC, due to the United Nations' stance that the death penalty is violative of human rights. 67 Historically, the death penalty was used in international military commissions, however an international military tribunal is not a likely option for those arrested in the War on Terrorism because no foreign nations have been specifically targeted in this war. 68 A majority of Americans continue to support a death penalty as a sentencing option, and President Bush specifically stated that a death penalty would be a sentencing option for those tried pursuant to the Military Order. 69
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MILITARY COMMISSIONS MEET THE ICCPR REQUIREMENTS FOR A FAIR TRIAL Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 The International Covenant on Civil and Political Rights sets out the requirements for fairness of any tribunal. 120 These include the requirements that a tribunal must ensure a "fair and public hearing by a competent, independent and impartial tribunal established by law;" provide the defendant with the presumption of innocence; inform the defendant of the nature of the charge against him; allow the defendant to be represented by counsel of his choosing; be able to face his accuser; have the right to remain silent; and have the right to appeal. The Covenant allows that "[t]he press and the public may be excluded from all or part of a trial for reasons of morals, public order ... or national security in a democratic society." 121 As outlined supra, the military commissions ordered in President Bush's Military Order meet these criteria.
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INTERNATIONAL TRIBUNALS FAIL TO MAINTAIN US NATIONAL SECURITY AS WELL AS MILITARY COMMISSIONS Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 A third argument is that there is low international support for the military commissions. Proponents of this argument maintain that establishing an international tribunal under the auspices of the United Nations to try accused terrorists would improve the United States' reputation in the international community and preserve good relations with American allies. However, the security interests of the United States make an international tribunal implausible. It would be difficult to preserve the secrecy of classified information in a trial before an international body including non-American citizens. Furthermore, military tribunals have generally been seen as an extension of the military campaign, and the military commissions for accused terrorists subject to the Military Order are no different. 127 Prosecuting terrorists under the auspices of the United Nations would be a departure from this view and would represent a weakening of the concept that a sovereign state has the right to capture and try those who engage in armed attacks against its citizens. 128
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THE CONCERN THAT THE USE OF COMMISSIONS TO TRY NON-CITIZENS WILL MAKE IT HARDER TO PROTECT THE DUE PROCESS RIGHTS OF CITIZENS IS MISPLACED Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 A final argument often made opposing the military commissions is the argument that the United States' treatment of non-citizen detainees may affect the treatment of American citizens detained abroad. This argument suggests that the United States, which has protested the use of military tribunals in other countries, will have less leverage in assisting Americans convicted by military tribunals. However, the United States' criticism has generally been limited to tribunal procedures that would constitute a violation of the fundamental fairness required by the International Covenant on Civil and Political Rights. 129 Furthermore, the national security interests necessitating the use of military commissions - the needs to preserve the confidentiality of classified information, avoid risk to civilians, and allow more flexible rules of evidence - seem to outweigh the national interest in helping citizens who have been convicted before foreign tribunals. The interests of thwarting terrorism and avoiding future attacks are simply more urgent.
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TRYING ACCUSED TERRORISTS IN FEDERAL COURTS POSES UNIQUE PRACTICAL CHALLENGES Scott L. Silliman (Prof. of Law, Duke University School of Law; former Judge Advocate, USAF), PROSECUTING ALLEGED TERRORISTS BY MILITARY COMMISSION: A PRUDENT OPTION, CASE W. RES. J. INTL L. Vol. 42:289 (2009) However, prosecuting a large number of the Guantnamo Bay detainees in the federal district courts would involve unique challenges. Assuming that some of the potential evidence in many cases would be highly classified, the trial judge would need a Sensitive Compartmented Information Facility (SCIF)17 15 Peter Finn, Guantnamo Bay Detainee Brought to U.S. for Trial, WASH. POST, June 11, 2009, at A1. when reading the classified documents and for securely storing the evidence when trial is not in session. Additionally, in order to assist the judge during trial, law clerks would need to have the requisite security clearances, a process which often takes months to accomplish. Ensuring court security and guaranteeing the safety of witnesses and jurors would also require significant additional resources. For example, when dealing with very high profile cases such as Khalid Sheikh Mohammed, it is not inconceivable that terrorist cells operating within the U.S. would target the courtroom and prisoner detention facility where he would be kept during trial proceedings.
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THE CIRCUMSTANCES OF DETAINEE TRANSFER POSE UNIQUE EVIDENTIARY CHALLENGES FOR FEDERAL COURTS Scott L. Silliman (Prof. of Law, Duke University School of Law; former Judge Advocate, USAF), PROSECUTING ALLEGED TERRORISTS BY MILITARY COMMISSION: A PRUDENT OPTION, CASE W. RES. J. INTL L. Vol. 42:289 (2009) There are evidentiary challenges as well in using the federal district courts to prosecute the Guantnamo Bay detainees. Statements taken from the detainees during their initial capture might be inadmissible either because they were taken under coercive conditions or because no advice of rights was given.18 There may be specific challenges which arise during pretrial discovery with regard to exculpatory material in the governments possession1 An admission made while a weapon is pointed directly at the detainee could hardly be considered free of coercion; and on the battlefield, the soldiers mission is to kill or capture the enemy, not to gather evidence for a criminal prosecution.
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THE PROCEDURES FOR DEALING WITH CLASSIFIED EVIDENCE IN PRE-TRIAL DISCOVERY ARE INADEQUATE Scott L. Silliman (Prof. of Law, Duke University School of Law; former Judge Advocate, USAF), PROSECUTING ALLEGED TERRORISTS BY MILITARY COMMISSION: A PRUDENT OPTION, CASE W. RES. J. INTL L. Vol. 42:289 (2009) There may be specific challenges which arise during pretrial discovery with regard to exculpatory material in the governments possession1 An admission made while a weapon is pointed directly at the detainee could hardly be considered free of coercion; and on the battlefield, the soldiers mission is to kill or capture the enemy, not to gather evidence for a criminal prosecution. 9 or written statements made by potential government witnesses.20 The government must release this information if the detainee requests it.21 If such material is classified, as would generally be the case, then, under the Classified Information Procedures Act (CIPA), the trial judge may conduct an in camera hearing to determine the use, relevance, or admissibility of the evidence. 22 In this situation, the determination of relevance may be difficult to make because the trial judge is acting outside the adversarial process and without the benefit of knowing how the detainee intends to proceed with his defense. If the classified material sought by the detainee is deemed relevant by the trial judge, and the governments offered unclassified substitutes or summaries are ruled inadequate, then the prosecution faces the dilemma of either having to produce the material, accept sanctions imposed by the trial judge, or forego prosecuting the detainee.23
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IT IS DIFFICULTY TO PROSECUTE LONG-DETAINED PRISONERS BECAUSE THEIR SUPPOSED RIGHT TO A SPEEDY TRIAL Scott L. Silliman (Prof. of Law, Duke University School of Law; former Judge Advocate, USAF), PROSECUTING ALLEGED TERRORISTS BY MILITARY COMMISSION: A PRUDENT OPTION, CASE W. RES. J. INTL L. Vol. 42:289 (2009) Although the full scope of a detainees constitutional protection beyond habeas corpus has not yet been ascertained, if the Sixth Amendment right to a speedy trial applies, prosecuting detainees who have been kept at Guantnamo Bay for five, six or more years may also prove to be a challenge. The Supreme Court has held that a delay of over eight years in prosecuting a drug dealer was clearly sufficient to trigger a speedy trial violation where the government was the cause of the delay.24
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MILITARY COMMISSIONS ARE VERY SAFE COMPARED TO FEDERAL COURTS Scott L. Silliman (Prof. of Law, Duke University School of Law; former Judge Advocate, USAF), PROSECUTING ALLEGED TERRORISTS BY MILITARY COMMISSION: A PRUDENT OPTION, CASE W. RES. J. INTL L. Vol. 42:289 (2009) Although prosecuting the detainees in military commissions using the newly revised rules and procedures might be subject to some of the same challenges facing trials in the federal district courts, military commission prosecutions offer some distinct advantages. A military commission, like the more traditional court-martial, is portable, meaning that it may be held anywhere,25 thereby obviating the security risks of holding trials in New York, Washington, or other metropolitan centers in this country. Even after the detention facility at Guantnamo Bay is closed, military commissions could readily be convened at any American military installation in the world, regardless of where the alleged offense took place or where the accused is detained. Since the trial would take place within a military facility, the active duty armed forces could provide an extremely high level of security in a manner which would be virtually impossible in a civilian community. If a military commission convicted and sentenced a detainee to any period of confinement, that detainee could serve the sentence at any location under military control.
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MILITARY COMMISSIONS ARE MORE EFFICIENT THAN FEDERAL COURTS, HELPING TO GIVE THE ACCUSED A SPEEDY TRIAL. Scott L. Silliman (Prof. of Law, Duke University School of Law; former Judge Advocate, USAF), PROSECUTING ALLEGED TERRORISTS BY MILITARY COMMISSION: A PRUDENT OPTION, CASE W. RES. J. INTL L. Vol. 42:289 (2009) A military commission is also an extremely efficient trial forum. As in the case of courts-martial, there is seldom any period of lengthy delay in a military commission between a conviction and the decision on sentencing since attorneys for both the government and the detainee must be prepared at the outset to proceed through the findings and sentencing phases of the trial. Also, unless Congress chooses to incorporate the court-martial requirement for a formal pretrial investigation 26 the equivalent of a grand juryinto military commission rules, a criminal charge can be referred to trial by a military commission in a relatively short period of time. The speedy trial issue arises because many of the detainees have been held at Guantnamo Bay for years without criminal charges being brought against them. The amended MCA specifically makes inapplicable the court-martial speedy trial rule under the UCMJ which provides that an accused should be brought to trial within one hundred and twenty days after the imposition of pretrial restraint.27 The question of whether any constitutional speedy trial protection extends to the detainees remains unanswered.
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MILITARY COMMISSIONS EMPANEL COMMISSIONED OFFICERS AS JURORS, USUALLY WITH A HIGH SECURITY CLEARNANCE, AND EMPLOY A MEANINGFUL APPEALS PROCESS Scott L. Silliman (Prof. of Law, Duke University School of Law; former Judge Advocate, USAF), PROSECUTING ALLEGED TERRORISTS BY MILITARY COMMISSION: A PRUDENT OPTION, CASE W. RES. J. INTL L. Vol. 42:289 (2009) Under the revised military commission procedures, the jury panel makes the decision as to guilt or innocence and, upon conviction, determines the sentence.28 Except when considering a capital charge, the jury panel need only have a minimum of five members,29 and the panels composition differs significantly from a federal jury in that it is comprised solely of commissioned officers who are chosen because they meet certain qualifications. 30 It is also highly likely that all members of the panel would hold some level of security clearance, and this would facilitate consideration of any classified material which might be introduced into evidence. As to appellate review under the new legislation, once the convening authority approves a finding of guilt, the case is referred to a Court of Military Commission Review (CMCR) which is comprised of appellate military judges.31 What is significant about the scope of review for the CMCR is that it includes determinations of both law and fact,32 thus permitting the appellate court to set aside a conviction based upon a finding of insufficient evidence to support the jury panels verdict. The model for this expanded scope of appellate review is the service courts of criminal appeal, the highest appellate courts in each of the armed services for review of courts-martial.33 Following action by the CMCR, a detainee may petition for further review in the Court of Appeals for the District of Columbia Circuit and then to the Supreme Court.34
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THE PRESIDENT HAS THE CONSTITUTIONAL AUTHORITY TO CREATE MILITARY COMMISSIONS UNDER ARTICLE II OF THE CONSTITUTION Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010). The President's authority to convene military commissions to try criminal violations by those involved in armed conflict flows from his Commander in Chief powers under the Constitution. n18 Under Title 10, U.S. Code, the Presi-dent may convene such bodies to try offenses against the laws of war. n19 Unlike the court-martial process established by the UCMJ to maintain discipline and order among U.S. forces, the military commission is directed at enemy com-batants as a means of deterring and punishing violations of the law of armed conflict. n20 When President Bush first signed a Military Order establishing commissions to try terrorism suspects in 2001, the process had not been used since World War II. n21 As courts established under the President's Article I executive authority, as opposed to the Article III federal judiciary, military commissions are not subject to the same constitutional requirements applied in federal courts. n22
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MILITARY COMMISSIONS AFFORD DEFENDANTS RELAXED DUE PROCESS PROTECTIONS Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010). The five detainees currently awaiting military commission proceedings in Guantanamo Bay n43 will face proceed-ings that differ greatly from those in [*131] federal district court. For example, the Fifth Amendment's requirement that no prosecution for a capital or otherwise infamous crime can proceed unless on presentment or indictment of a grand jury has been specifically excepted from military commission proceedings. n44 Similarly, the requirements con-cerning trial by jury in the Sixth Amendment have been found to be inapplicable to trials before military commissions. n45 Due process requirements also differ. Fifth Amendment due process protections in military commissions and courts are subject to the Congress' "plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures and remedies related to military discipline." n46 In Weiss, the Supreme Court upheld a narrowed interpretation of Fifth Amendment due process in the context of military criminal proceedings. n47 The military commissions authorized by the MCA, in fact, afford the detainees fewer procedural protections overall than would be available to defendants in either a military court-martial or in federal court. n48 A careful review of procedural and substantive rights in a military commission versus a federal district court may prove helpful.
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THE RIGHT TO AN ATTORNEY BEFORE A MILITARY COMMISSION IS BASICALLY THE SAME AS THE SAME RIGHT IN FEDERAL COURT Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010). The right to assistance of counsel in any criminal proceeding is considered the most basic of U.S. constitutional rights. The Sixth Amendment makes clear that every criminal defendant has the right "to have the Assistance of Coun-sel for his defence." n49 The Supreme Court has ruled that it is not just the [*132] assistance of counsel, but the effective assistance of counsel that is required. n50 In federal criminal courts, this right is effected through Rule 44 of the Federal Rules of Criminal Procedure. n51 Under this Rule, a defendant who is unable to afford counsel will have one appointed to represent him at every stage of the proceedings unless he waives that right. n52 The rule concerning the right to counsel before military commissions is similar. n53 Rule 506 of the Rules for Mili-tary Commissions provides a detainee charged with criminal offenses with a detailed military defense counsel at no cost to him. The detainee may also request a specific military defense counsel, and if reasonably available, that counsel will be provided. n54 The detained unlawful combatant may also retain a civilian counsel, but at no cost to the government. Non-military counsel must also have U.S. citizenship and a security clearance, in light of the sensitivity of the charges in this forum. n55 As in the case of a federal court proceeding, the defendant before a military commission may waive his right to attorney representation and represent himself. n56
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MILITARY COMMISSIONS ADOPT A FLEXIBLE RULE AS TO WHETHER HEARSAY IS ADMISSIBLE Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010). A critical prosecution issue either in federal court or before a military commission is hearsay evidence. Hearsay is a prior out-of-court statement offered at trial to prove the truth of the matter asserted. This is especially significant in the context of a terrorist trial where crucial witnesses detained by foreign governments may be unavailable to come to the United States to testify, or the U.S. or a foreign government may be unwilling to make intelligence operatives available for the proceeding. Both federal courts and military commissions have established procedural rules governing the admission of evidence. Under the Federal Rules of Evidence, hearsay is generally inadmissible unless an exception can be asserted. n70 Exceptions to the hearsay rule exist where the context in which the statement was made or the nature of the content of the statement gives it greater inherent trustworthiness than other out of court statements. Some examples include statements of a self-incriminating nature, records of a regularly conducted activity, excited utterances made in response to a startling event, or certain statements by a person who is deceased or was facing impending death. n71 Another exception permits the introduction of [*135] evidence, over hearsay objection, when the statement has an "equivalent circumstantial guarantee of trustworthiness." n72 Some statements that federal courts have recognized under this exception, which will be critical to the proceedings in New York, are those contained within the files of foreign intelligence authorities. n73 Also exempted from the federal hearsay rule are statements made by co-conspirators in furtherance of the conspiracy. n74 These statements are not technically considered hearsay. While the conspiracy must be proved before this rule can be applied, the same hearsay statements may be used to prove the existence of the conspiracy, but only if the hearsay is corroborated by other reliable evidence. The evidentiary rules under the Military Commission Rules of Evidence ("MCRE"), as amended in 2009, are far more flexible, and even permissive. Under the MCRE, hearsay is not excluded in two situations. Hearsay is admitted if it would otherwise be admitted under the Military Rules of Evidence applicable in general courts-martial, or if the pro-ponent of the evidence makes known to the adverse party 30 days in advance the intention to offer the evidence, as well as the circumstances under which it was taken. n75 These particulars should include the time, place and conditions under which the statement was taken. n76 The evidence would only be excluded if the totality of the circumstances under which it was taken shows the statement to be unreliable. n77
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THE SPEEDY TRIAL REQUIREMENT COULD COMPROMISE PROSECUTIONS OF TERRORISTS IN FEDERAL COURTS Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010). The Sixth Amendment guarantees the right to a speedy trial to all criminal defendants. n78 The right applies to prosecutions in both federal and state courts, as the Supreme Court has found the right to be one of the "fundamental" constitutional rights the Fourteenth Amendment applied to the states. n79 As noted in Barker v. Wingo, n80 the justifications for the right to a speedy trial include not [*136] only a concern regarding lengthy incarceration but also the interest of the American people in resolving criminal allegations in a timely and effective manner. n81 Furthermore, the Supreme Court recognized "a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the rights of the accused." n82 The right to speedy trial is codified for federal courts in the Federal Speedy Trial Act of 1974. n83 Under this Act, the Government is required to bring an indictment against a person within 30 days of his arrest, and the trial must com-mence within 70 days of indictment. n84 Nevertheless, the Supreme Court has qualified the right by stating that "not every constitutional provision applies to governmental activity even where the United States has sovereign power" and that "aliens receive constitutional protections when they have come within the territory of the United States and devel-oped substantial connections with the country." n85 Moreover, the Federal Speedy Trial Act provides several specific exceptions to the timelines provided above. Relevant exceptions likely applicable to detainees include the "ends of jus-tice" exception and the "unusual or complex" rationale for delaying trial. n86 Under either exception, a trial judge would be permitted to delay proceedings when he or she determines that a delay serves the "ends of justice" that outweigh the interests of the public and the accused in a speedy trial, or permit a delay when the facts at issue are "unusual or com-plex." n87 Under the 2009 Amendments to the MCA, there are no statutory or procedural requirements addressing speedy trial in the case of enemy combatant detainees. Nevertheless, detainees tried by military commission will likely argue that the delay in prosecuting their cases violated their Fifth Amendment due process right by "caus[ing] substantial prejudice to [the detainees'] right to a fair trial." n88
12NFL1-Terrorism Due Process www.victorybriefs.com THE STATUS QUO CRIMINAL PROCESS IS FLEXIBLE AND EFFICIENT
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Parry, John (2007). "Terrorism and the new criminal process." William & Mary Bill of Rights Journal 15.3: 792-793. That said, the primary advantage of the new criminal process is its flexibility and efficiency. To the extent constitutional and statutory rules apply more leniently, executive officials have discretion to craft strategies for the specific needs of a particular investigation or other activity. Investigators can engage in broad collection of information about people who have little or no apparent relation to terrorist activities (depending, of course, upon how one defines "terrorist activities" in light of such things as the material support statutes). Once suspects are identified, they can be detained, or not, and officials can decide to interrogate, or not, to bring charges, or not, bound by only mild time constraints. Because interrogation is not necessarily directed at obtaining admissible evidence, rules that would ordinarily limit the available range of tactics may not apply. Further, the new criminal process includes the possibility of having the "sentence" follow immediately after the investigation, as with efforts to kill suspected terrorists rather than put them on trial.
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THE CRIMINAL JUSTICE SYSTEM IS NOT EQUIPPED TO TRY TERRORISTS IN SUCH A WAY THAT IT FIGHTS THE WAR ON TERROR Sofaer, Abraham & Paul Williams (2002). "Doing justice during wartime." Hoover Instituation Policy Review 111:1-2. Unlike the executive branch departments, the judicial system cannot rapidly retool or evolve to accommodate the new needs of terror war. The American domestic criminal system was designed primarily to protect civil liberties while effectively prosecuting those responsible for murder and other domestic crimes. The system was never intended or designed to perform the judicial roles related to terror war or for that matter to prevent fundamentalist terrorism. The creation of military commissions is thus an effort by the Bush administration to provide a method for trying non-citizen terrorists that corresponds to the shift from fighting terrorism with conventional law enforcement to serious foreign military engagement. Just as a single cruise missile attack against near-empty training camps constituted ineffective, pinprick engagement, the use of the domestic criminal system to try all terrorist prisoners would amount to ineffective, pinprick justice. The domestic criminal justice system, by itself, is simply unable to serve as an effective tool in dealing with the judicial fallout of terror war. Even the most successful prosecutor of terrorists, U.S. Attorney Mary Jo White, has recognized that, with proper safeguards, military commissions could be preferable to conventional trials in a time of war, as she told the New York Times.
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS ARE PREFERABLE FOR FOUR REASONS
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Sofaer, Abraham & Paul Williams (2002). "Doing justice during wartime." Hoover Instituation Policy Review 111:1-2. The reasons for the preference for military commissions are numerous. First, and most important, the acts of terror committed by al Qaeda against civilians are not the types of crimes our domestic system was designed to prosecute; rather, as President Bush characterized them, they are war crimes. Sen. Joseph Lieberman, writing in the Washington Post January 1, put it this way: The attacks of Sept. 11 were acts of war. Because they were carried out against defenseless civilians by terrorists posing as noncombatants using concealed weapons, the perpetrators were guilty of heinous war crimes, not simple domestic crimes. Second, the domestic system has proven unable to deter and rarely able even to punish those responsible for terror crimes. In the cases of the Yemen hotel bombing, the attack on the Saudi National Guard, the 1996 Khobar Towers attack, the 1993 bombing of the World Trade Center, the 1998 bombings of U.S. embassies in Africa, and the U.S.S. Cole attack in 2000, the U.S. either has been unable to prosecute any responsible party or has prosecuted only a handful of low-level culprits and ideological supporters. Third, to insist on the application of American constitutional due process standards to terrorist perpetrators of war crimes would limit the U.S. in exercising its national security powers. Evidence subject to exclusion from a trial would not be appropriate to consider, even though the evidence was reliable and established heinous and ongoing behavior. Guilt would have to be established on the basis of such admissible evidence, beyond a reasonable doubt. The need to establish such proof, we are told, led to a catastrophic decision by the Clinton administration. In 1996, Sudan offered to detain and transfer bin Laden to the United States. According to the Washington Post, then-National Security Advisor Sandy Berger declined the offer on the grounds that it would not be possible to try and convict him in an American criminal court. This, despite our having no moral doubt of his involvement in the Yemen hotel bombing, the attack on the National Guard, and the Khobar Towers attack, and despite our awareness of his determination to engage in future attacks. Fourth, extensive use of domestic courts may significantly undermine the United States ability to protect its citizens and to prevent additional attacks. Judges and juries in such cases have historically been at risk from terrorist groups. Under current law, it is not possible to protect intelligence methods and information used against the defendants in court. While federal legislation limits the ability of defense counsel to examine intelligence agency files used to prepare a case, all information used in court, and all methods used to gather it, are open to the public. Even much of the unclassified information presented at trial may be of use to future terrorists such as structural diagrams of the World Trade Center and expert testimony as to the size of an airplane necessary to bring down one of the towers.
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MILITARY COMMISSIONS ARE FLEXIBLE, WHICH IS KEY TO ENSURING CRIMINAL JUSTICE Sofaer, Abraham & Paul Williams (2002). "Doing justice during wartime." Hoover Instituation Policy Review 111:2. Military commissions are a flexible tool on which the United States can rely to ascertain with relative informality which defendants are in fact responsible for criminal acts and which are not. This flexibility is an important, practical necessity; for example, in addition to the nearly 500 suspects in American custody by January 2002, Afghan forces were holding nearly 3,000 nonAfghan prisoners who may have had some connection to al Qaeda or may have been trained in terrorism. The military commissions also offer an opportunity not possible in the domestic context to create mixed tribunals involving civilian or military judges from countries such as Afghanistan and Pakistan, which currently exercise custody over the detainees, or from countries such as Saudi Arabia and Kuwait, whose citizens are among the detainees.
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS PROVIDE A FAIR TRIAL
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Sofaer, Abraham & Paul Williams (2002). "Doing justice during wartime." Hoover Instituation Policy Review 111:2-3. Contrary to some contentions, the military commissions can provide a full and fair trial while also protecting sensitive intelligence and other information crucial to further efforts to prevent and deter acts of terrorism and war crimes. The Department of Defense must (and we believe it will) ensure that the military commissions comply with the obligation in the Military Order to provide for a full and fair trial, and to ensure that the purpose of the commissions remains to ascertain the guilt or innocence of those accused of war crimes and terrorism. Given that all of the suspects to be tried by military commission will be foreign nationals, it is appropriate for the United States to look to international standards of justice in formulating procedures. Various sets of international standards exist, but the most practical are those used by the International Criminal Tribunal for Yugoslavia (ICTY). According to the statute and rules of evidence and procedure for the tribunal formulated with the participation and approval of many nations and the entire U.N. Security Council all defendants are entitled to an expeditious, fair, and public trial, the presumption of innocence, the right to defense counsel of their choosing or to have legal assistance provided, the right to examine evidence and witnesses, and the right not to be compelled to testify against oneself or to confess guilt.
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MILITARY COMMISSIONS DO NOT UNDERMINE THE WAR ON TERROR, PUBLIC TRIALS UNDERMINE THE WAR ON TRIAL Sofaer, Abraham & Paul Williams (2002). "Doing justice during wartime." Hoover Instituation Policy Review 111:3. Another concern raised about the use of military commissions is that by not having a public trial, the United States forgoes an opportunity to try to undermine international support for terrorism. No evidence supports this claim. The United States has had a number of trials of low-level terrorists and trigger- pullers, and there is no indication whatsoever that those trials have reduced the level of support for terrorism. If anything, the trials have led to cries of outrage from the radical Islamic world and provided a platform for defiant speeches and posturing. It is highly unlikely that any individual sufficiently propagandized by religion and ideology to train in an al Qaeda terrorist camp is going to be influenced by Court TV coverage of judicial proceedings. More likely, the fully public hearings will provide a platform for the further recruitment of terrorists and for preaching the tenets of Islamic fundamentalism. This is why Zacarias Moussaoui, accused of participating in planning the September 11 attacks, sought to permit Court TV to cover his trial and why the U.S. government opposed his request.
12NFL1-Terrorism Due Process www.victorybriefs.com MILITARY COMMISSIONS DO NOT UNDERMINE THE RULE OF LAW
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Sofaer, Abraham & Paul Williams (2002). "Doing justice during wartime." Hoover Instituation Policy Review 111:3. A second concern is that using military commissions instead of conventional trials will undermine American values and the rule of law, and thus hand victory to the terrorists. This is fanciful and unfair. First, so long as the military commissions provide for a full and fair trial, they do not undermine American values or the rule of law. The Supreme Court has upheld such commissions in principle, and the level of protections provided will be much higher now than in the World War II case in which the court ruled. Second, it is silly to suggest that bin Laden is seeking to undermine the rule of law in the U.S., and would therefore gain from being tried by a military tribunal. Bin Laden is not waging a war against the United States because he objects to our notions of democracy and civil liberties, but because he has determined that killing Americans is the best way to undermine American support for the Saudi regime. American support for that regime is based on our economic and geo-strategic interests certainly not on our values. Similarly, the individual al Qaeda terrorists who actually carry out attacks are not interested in undermining American values, but in personal glory and a shortcut to martyrdom and the afterlife. In short, we lose nothing by using tribunals, and they gain nothing by our doing so.
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MILITARY COMMISSIONS ARE NOT KANGAROO COURTS THAT HARM OUR CREDIBILITY Sofaer, Abraham & Paul Williams (2002). "Doing justice during wartime." Hoover Instituation Policy Review 111:3-4. A third concern is that the military commissions will become kangaroo courts or will be perceived as such by the world. We simply cannot be moved by such claims, to the extent that they are made. The U.S. system of justice will require full and fair hearings, which will satisfy international standards. The kangaroo courts that al Qaeda prisoners are likely to see will be for those unlucky enough not to have the benefit of a U.S. trial, forced instead to confront the likely alternative of summary execution by the Northern Alliance or southern Pashtun tribes, or summary proceedings by Islamic courts in the region. Our allies will support us in this regard. Many European states, including France, Ireland, and Italy, have special proceedings, rules of evidence, and procedures for terrorism cases, and most of the Arab states, including Egypt and Jordan, use military tribunals extensively to try suspected terrorists. Some states, like Spain, may refuse to extradite suspected al Qaeda members to the United States to face a military commission even though, as some experts have noted, the suspects would likely receive a higher level of due process before an American military commission than in a Spanish criminal court. But in these instances, the United States can suggest other alternatives in order to gain custody of particularly important individuals. Some argue that by not providing terrorists seized in the ongoing terror war with American constitutional protections, the United States will no longer have credibility with the international community when it seeks to criticize other states for failing to apply standards similar to those applied in the United States. In fact, the conduct of full and fair trials before a military commission consistent with internationally accepted standards (as opposed to merely American standards) is a lot more likely to persuade states already using military tribunals to upgrade their level of due process to international standards than is continued lecturing by American diplomats and NGOs about the need to copy the American model of due process.
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MILITARY COMISSIONS ARE PRIVATE, WHICH IS KEY TO PROTECTING CLASSIFIED INFORMATION Kris, David (2011). "Law enforcement as a counterterrorism tool." Journal of National Security Law & Policy 5.1: 44-46. Closing the courtroom may be helpful in some terrorism proceedings to protect classified information from public disclosure. It may be somewhat easier to close the courtroom in a military commission than in a federal criminal prosecution, and it is clearly easier to do so in civil habeas corpus proceedings challenging law of war detention. Under the Constitution, a federal criminal trial is presumptively open, and may be closed only upon a specific finding by the trial judge that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Consistent with this standard, courts have also implemented special procedures such as the silent witness rule in some cases to shield classified information from disclosure to the public attending a trial, which is similar in many respects to closing the proceeding as to the evidence in question. Under the 2009 MCA, a military judge may close all or part of a trial to the public in potentially broader circumstances, but must still make a determination that closure is necessary to protect information which, if disclosed, would be harmful to national security interests or to the physical safety of any participant. Moreover, in contrast to federal judges, military judges have more practical references for the conduct of closed proceedings, as it is not uncommon for courts-martial to include closed sessions to admit classified evidence, an experience that will likely influence the practice in military commissions. Since habeas corpus proceedings take place in federal courtrooms, they are also theoretically open to the public. However, as a practical matter, the vast majority of district court habeas proceedings involving Guantnamo Bay detainees have been closed in order to protect classified information. Although in the large majority of cases counsel see the same classified material the court sees, the habeas petitioner has no right to review classified material or even to be present at the hearing. Arrangements are made for petitioners to listen from Guantnamo to unclassified opening statements, and they often testify in their cases via video link. The classified portions of the district court proceedings are closed, however, and involve only the judge, counsel and other court personnel. Appellate proceedings have required the filing of public briefs (in which classified material is redacted) and oral arguments have generally been open to the public, with the court holding additional closed sessions when necessary.
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PUBLIC TRIALS WOULD NOT LEAD TO FAIR TRIALS FOR TERRORIST SUSPECTS Flanagan-Hyde, Katherine (2006). "The public's right of access to the military tribunals and trials of enemy combatants." Arizona Law Review 48.585, lexis. In certain circumstances, the opening of a judicial proceeding to the public could cause such disturbance that the presence of the press and press coverage of the trial would prevent a n182 criminal defendant from receiving a fair trial. The Court has noted that tensions "develop between the right of the accused to trial by an impartial jury and the rights guaranteed others by n183 the First Amendment" where a sensational trial attracts significant press attention. In addition to the danger that publicity could prejudice the jury, press coverage of a trial could disrupt the n184 courtroom proceedings. For instance, in a highly publicized murder case, the Court concluded that the defendant was entitled to a new trial because "bedlam reigned at the courthouse," and n185 the press had caused "frequent confusion and disruption" of the trial. As a result of the trial judge's failure to control press behavior within the courtroom and press coverage of the trial outside the courtroom, the Court found that the defendant had not received a fair trial consistent n186 with due process.
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CONSTITUTIONAL TRIALS WOULD REVEAL IMPORTANT CLASSIFIED INFORMATION McCarthy, Andrew (2004). "Terrorism on trial." Case W. Res. J. Int'l L. 36.513: 519-520 In that context, the mountain of information we are discussing here is being surrendered to an enemy, not a defendant. If al Qaeda had expended millions of its finite resources, it could never have hoped to amass the trove of intelligence it has garnered, for free, as a result of our prosecutions and their attendant, generous discovery rules. Concededly, this information has routinely been disclosed subject to judicial admonitions: defendants may use it only in preparing for trial, and may not disseminate it for other. Let me provide just one concrete example. In 1995, just before trying Sheikh Abdel Rahman and his co-defendants, I duly complied with discovery law by writing a letter to the defense counsel listing 200 names of people and entities the government was reserving the right to identify at trial as unindicted co-conspirators-i.e., people who were on the government's radar screen but whom there was insufficient evidence to charge. Six years later, my letter turned up as evidence in the trial of those who bombed the U.S. embassies in east Africa. It seems that, within a short time of my having provided it to the defense, 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 procured it from one of his associates. Intelligence is dynamic. Over time, foreign terrorists and spies inevitably learn our tactics and adapt: consequently, we must refine and change those tactics. When we purposely tell them what we know-for what is presumed to be the greater good of ensuring they get the same kind of fair trials as insider traders and tax cheats-we enable them not only to close the knowledge gap but to gain immense insight into our technological capacities, how our agencies think, and what our future tactics are likely to be.
12NFL1-Terrorism Due Process www.victorybriefs.com TRIALS WITH JURIES WILL INEVITABLY BE BIASED
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McCarthy, Andrew (2004). "Terrorism on trial." Case W. Res. J. Int'l L. 36.513: 520-521. Islamic militants are significantly different both in make-up and goals from run-of-the-mill citizens and immigrants accused of crimes. They are not in it for the money; they desire neither to beat nor cheat the system, but rather to subvert and overthrow it; and they are not about getting an edge in the here and now-their aspirations, however grandiose they may seem to us, are universalist and eternal, such that their pursuit is, for the terrorist, more vital than living to see them attained. They are a formidable foe, and, as noted above, the national-security imperatives they present are simply absent from the overwhelming run of criminal cases. As a result, when we bring them into our criminal justice system, we have to cut corners-and hope that no one, least of all ourselves, will discern that with the corners we are cutting important principles. Innocence is not so readily presumed when juries, often having been screened for their attitudes about the death penalty, see intense courtroom security around palpably incarcerated defendants and other endangered trial participants.
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CRIMINAL COURTS ARE ILL-EQUIPPED TO PROSECUTE TERRORISTS BECAUSE THEY DONT ALLOW RELIABLE INDICATORS OF GUILT LIKE CORRBORATED HEARSAY Madeline Morris, Frances Eberhard, & Michael Watsula (2009). "After Guantanamo: war, crime, and detention." Harvard Law and Policy Review Online 3, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2630&context=faculty_scholarship&se i Several specific obstacles to the successful criminal prosecution of terrorism cases reflect this underlying incongruity. First, evidence that may be a highly reliable indicator of dangerousness may also be, in some instances, inadmissible in a criminal trial. Take, for example, corroborated hearsay. Imagine that three informants report hearsay statements indicating that the suspect is plotting a biological weapons attack. Although the three informants have not communicated with each other, the three statements contain identical details that could not be coincidental. There is also physical evidence that corroborates the hearsay statements. All of the hearsay statements, no matter how reliably they may indicate dangerousness, are inadmissible in a criminal trial, under the relevant rules of evidence. And the physical evidence, uninformed by the hearsay testimony, is meaningless (or, if not meaningless, then certainly not proof beyond a reasonable doubt). In this situation, prosecution is not a viable optioneven though there may be sound basis to believe that the person is too dangerous to release.
12NFL1-Terrorism Due Process www.victorybriefs.com CRIMINAL TRIALS WILL COMPROMISE CLASSIFIED INFORMATION
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Madeline Morris, Frances Eberhard, & Michael Watsula (2009). "After Guantanamo: war, crime, and detention." Harvard Law and Policy Review Online 3, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2630&context=faculty_scholarship&se i A second problem frequently affecting terrorism prosecutions concerns classified information. The presentation of certain evidence at trial (by the prosecution or the defense) may compromise sensitive intelligenceor reveal the methods or sources used for gaining intelligencewith resultant damage to national security. Some commentators dismiss this problem, noting that many terrorism cases have been successfully prosecuted in federal courts.2 But the relevant question is not whether some terrorism cases can be prosecuted successfully in federal courts clearly, some canbut, rather, whether some cannot. There is no publicly available list of the terrorism cases that were not prosecuted because of the national-security costs that would have been associated with disclosing the necessary evidence in those trials.
12NFL1-Terrorism Due Process www.victorybriefs.com PUBLIC TRIALS IN ARTICLE III COURTS POSES A THREAT TO JURORS Wedgwood, Ruth (2001). "The case http://www.law.yale.edu/news/3297.htm for military tribunals." Wall
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Street
Journal,
Moreover, just consider the logistics. It is hard to imagine assigning three carloads of federal marshals, rotated every two weeks, to protect each juror for the rest of his life. An al Qaeda member trained in surveillance can easily follow jurors home, even when their names are kept anonymous. Perhaps it is only coincidence that the World Trade Center towers toppled the day before al Qaeda defendants were due to be sentenced for the earlier bombings of East Africa embassies--in a federal courthouse in lower Manhattan six blocks away. But certainly before Sept. 11 no one imagined the gargantuan appetite for violence and revenge that bin Laden has since exhibited. Endangering America's cities with a repeat performance is a foolish act.
12NFL1-Terrorism Due Process www.victorybriefs.com HYBRID COURTS WILL LEAD TO BACKLASH Wedgwood, Ruth (2001). "The case http://www.law.yale.edu/news/3297.htm for military tribunals." Wall
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Journal,
It is even more fanciful to propose that a largely Muslim court should be delegated to try bin Laden and company. Arab and Muslim states will fear the reaction of their own local militants. And Israel might properly wonder why it could not also serve on such an international court, since bin Laden's fatwa called for the murder of Jews and Americans. No Arab state would participate, of course, if an Israeli judge served. This does not preclude offering into evidence, at a military tribunal, the works of international law by Muslim jurists that show that the standards of protecting innocents are universal.
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MILITARY COURTS ARE MORE EXPERIENCED THAN ARTICLE II COURTS AT TRYING WAR CRIMES Wedgwood, Ruth (2001). "The case http://www.law.yale.edu/news/3297.htm for military tribunals." Wall Street Journal,
Military courts are the traditional venue for enforcing violations of the law of war. The Sept. 11 murder of 4,000 civilians was an act of war, as recognized by the U.N. Security Council in two resolutions endorsing America's right to use force in self-defense. Osama bin Laden and his airborne henchmen disregarded two fundamental principles of morality and law in war--never deliberately attack civilians, and never seek disproportionate damage to civilians in pursuit of another objective. The choice to carry out the attacks during the morning rush hour reveals this to be a war crime of historic magnitude. Why not try al Qaeda members in Article III federal courts, with a civilian judge and a jury? Federal judges have never been involved in the detention of POWs or unprivileged combatants. Only in 1996 did federal courts gain limited statutory jurisdiction to hear war crimes matters, and no federal court has ever heard such a case.
12NFL1-Terrorism Due Process www.victorybriefs.com CRIMINAL COURTS COULD BECOME TERRORIST TARGETS
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Mukasey, Michael (2009). "Civilian courts are no place to try terrorists." Wall Street Journal, http://online.wsj.com/article/SB10001424052748704107204574475300052267212.html Moreover, there is every reason to believe that the places of both trial and confinement for such defendants would become attractive targets for others intent on creating mayhem, whether it be terrorists intent on inflicting casualties on the local population, or lawyers intent on filing waves of lawsuits over issues as diverse as whether those captured in combat must be charged with crimes or released, or the conditions of confinement for all prisoners, whether convicted or not.
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CRIMINAL COURTS MEAN CIVILIAN PRISONS, WHICH ENABLES EXTREMIST PROSELYTIZING Mukasey, Michael (2009). "Civilian courts are no place to try terrorists." Wall Street Journal, http://online.wsj.com/article/SB10001424052748704107204574475300052267212.html Even after conviction, the issue is not whether a maximum-security prison can hold these defendants; of course it can. But their presence even inside the walls, as proselytizers if nothing else, is itself a danger. The recent arrest of U.S. citizen Michael Finton, a convert to Islam proselytized in prison and charged with planning to blow up a building in Springfield, Ill., is only the latest example of that problem.
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EVEN THE SLIGHTEST DISCLOSURE OF SECRET EVIDENCE COULD EXPOSE INFORMANTS Mukasey, Michael (2009). "Civilian courts are no place to try terrorists." Wall Street Journal, http://online.wsj.com/article/SB10001424052748704107204574475300052267212.html It is not simply the disclosure of information under discovery rules that can be useful to terrorists. The testimony in a public trial, particularly under the probing of appropriately diligent defense counsel, can elicit evidence about means and methods of evidence collection that have nothing to do with the underlying issues in the case, but which can be used to press government witnesses to either disclose information they would prefer to keep confidential or make it appear that they are concealing facts. The alternative is to lengthen criminal trials beyond what is tolerable by vetting topics in closed sessions before they can be presented in open ones.
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IT IS INEVITABLE THAT CLASSIFIED INFORMATION WILL LEAK BECAUSE OF LOOPHOLES IN CIP Walton, Reggie (2010). "Prosecuting international terrorism cases in article III courts." Annual Review of Criminal Procedure 39, lexis. Speaking on a more practical level, the CIPA's procedures can impose immense burdens on both courts and litigants. In the discovery context, for example, trial judges are often forced to painstakingly comb through voluminous amounts of documents to determine what must be provided to the defense. For the government, crafting substitutions that are fair to the defendant n121 can prove to be both laborious and time-consuming. And as judges and lawyers with CIPA experience can attest, "decisions about turning such information over and defining its appropriate uses are not easy ones for prosecutors and courts, particularly when disclosure of the information may reveal sources and methods of intelligence information and collection that, in a very real n122 sense, could endanger people and governments." The cleared-counsel discovery model attempts to alleviate this problem by limiting the disclosure of classified information to defense counsel who has acquired a security clearance, thereby making it less likely that an unauthorized n123 n124 disclosure would create a security breach. But, as noted above, that model is subject to a number of constitutional limits, and those limits have yet to be precisely defined.
12NFL1-Terrorism Due Process www.victorybriefs.com INTERNATIONAL COURTS
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THE ICC SHOULD EXERCISE ITS EXISTING JURISDICTION TO PROSECUTE ACTS OF TERRORISM; THIS IS PREFERABLE TO ENFORCEMENT BY NATION-STATES Kathleen Maloney-Dunn (Adjunct Professor, International Human Rights Clinic at Willamette University College of Law; Visiting Professional, Appeals Chamber, International Criminal Court, 2008.) Humanizing Terrorism Through International Criminal Law: Equal Justice for Victims, Fair Treatment of Suspects, and Fundamental Human Rights at the ICC, 8 Santa Clara Journal of International Law 1 (2010). It is important to consider that terrorist acts already fall under the ICCs jurisdiction if they encompass elements of war crimes, crimes against humanity, or genocide.8 If the ICC had existed and the relevant states had been parties to the Rome Statute at the time of the terrorist attacks of 9/11, these crimes could have been prosecuted at the ICC as crimes against humanity, as some public leaders and international legal experts recommended.9 Such a supranational approach by a neutral institution could have averted the devastation wrought by interpreting 9/11 as an attack upon a state, precipitating wars against the Afghani and Iraqi states, but causing losses of life and freedom suffered by countless individuals. Accordingly, it is even more important to consider the main alternative to the over-investment in international criminal law that Norberg laments: the over-investment in global militarism, including military trials. This trajectory involves dangers riskier than recognizing terrorism as an objectivelydefined crime subject to international criminal justice, including (1) states justifying the use of force, responsively or preemptively, unilaterally or multilaterally, individually or collectively, on an ad hoc basis, against terrorism as an act of war, yet defying or twisting universally binding laws of war beyond recognition; and (2) non-compliance of states with internationally-recognized standards for detention and fair trials for terror suspectsduring, after, or outside armed conflictsand concomitant state policies that curtail human rights and criminal due process in the name ofnational security.
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PROSECUTION OF TERRORISM THROUGH AN INTERNATIONAL CRIMINAL TRIBUNAL HELPS TO AVOID THE USE OF FORCE THAT PRODUCES SIGNIFICANT HUMAN RIGHTS ABUSES AND VIOLATIONS OF INTERNATIONAL LAW Kathleen Maloney-Dunn (Adjunct Professor, International Human Rights Clinic at Willamette University College of Law; Visiting Professional, Appeals Chamber, International Criminal Court, 2008.) Humanizing Terrorism Through International Criminal Law: Equal Justice for Victims, Fair Treatment of Suspects, and Fundamental Human Rights at the ICC, 8 Santa Clara Journal of International Law 1 (2010). Regarding the first menace, military responses to terrorism may violate jus in bello tenets of discrimination and proportionality to the original terrorist act or threat, yet are justified as conforming with the jus ad bello principle of necessity10 and the United Nations requirement of self-defense, thus circumventing designation as an illicit aggressive war.11 Terrorist spectaculars like 9/11 triggering mass fear or hysteria produce greater public support for, and less scrutiny of, retaliatory wars and how they are waged. Such belligerent campaigns engender not only the short-term repressive impacts of war, but also the second, longer-term menace: the protracted suspension of civil liberties of entire populations. This erosion of human rights may continue indefinitely as pre-emption12 and prevention of future terrorism become entrenched priorities. While both military and non-military reactions to terrorism may entail human rights transgressions, resort to the use of force produces additional harms that must not be ignored in the important debate Norberg has enriched. These include breaches of well-established international customary and humanitarian law, with derogations defended on grounds that terrorists do not respect the rule of law,13 cannot be deterred or reformed,14 and that the global war on terrorism is exceptional.15 Such rationales have been invoked to excuse the evisceration of widely-accepted international legal norms, including, inter alia, definitions of torture and nonenemy combatants, proper treatment of detainees or prisoners of war, legality of targeted assassinations, extra-territorial jurisdiction, or wars of aggression.16 Other more direct harms entail deaths, injuries, displacement, and property losses suffered by innocent civilians and institutions through such reprisals and transnational law enforcement operations. The use of force leads to spiraling cycles of violence, suppression of human rights, and dehumanization of the otherthe same effects that Norberg condemns in non-military antiterrorism initiatives. Significantly, a primary goal of international criminal tribunals is holding individuals accountable in order to mitigate collective assignations of guilt17 that perpetuate group-based hatred and discrimination. The ICC and other international tribunals may thus serve to counteract stigmatization of the other that Norberg denounces.
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INTERNATIONAL TRIBUNALS PROTECT DUE PROCESS AND HUMAN RIGHTS BETTER THAN MILITARY COMMISSIONS Kathleen Maloney-Dunn (Adjunct Professor, International Human Rights Clinic at Willamette University College of Law; Visiting Professional, Appeals Chamber, International Criminal Court, 2008.) Humanizing Terrorism Through International Criminal Law: Equal Justice for Victims, Fair Treatment of Suspects, and Fundamental Human Rights at the ICC, 8 Santa Clara Journal of International Law 1 (2010). Furthermore, these tribunals protect the human rights of those accused of international crimes, including the presumption of innocence; the right to counsel and an impartial, fair, public trial; the right of suspects to confront testimony and evidence against them; proof of guilt beyond a reasonable doubt; the right of appeal, and; fair sentencing. These fair trial procedures help ensure not only that justice is done, but also is seen to be done, which is particularly important in the context of the fight against terrorism,18 especially since denying fair trial rights creates exclusion and injustice that might cause some to resort to the inexcusable tactics of terrorism.19 Wartime military tribunals, such as the military commissions authorized in the aftermath of 9/11 for non-citizen terrorist suspects, accord fewer due process safeguards than civilian courts or even military courts-martial.20 Administrative, arbitrary, indefinite, or prolonged detention has also affected American citizens and long-time residents, designated as enemy combatants.21 Many governments around the world have insisted that post-9/11 repressive policies were warranted to combat terrorism, from summary military trials to brutal crackdowns on political agitators.22 Such campaigns invariably involve dehumanization.
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USE OF INTERNATIONAL TRIBUNALS TO PROSECUTE TERRORISM IS ESSENTIAL TO PROTECTING HUMAN RIGHTS Kathleen Maloney-Dunn (Adjunct Professor, International Human Rights Clinic at Willamette University College of Law; Visiting Professional, Appeals Chamber, International Criminal Court, 2008.) Humanizing Terrorism Through International Criminal Law: Equal Justice for Victims, Fair Treatment of Suspects, and Fundamental Human Rights at the ICC, 8 Santa Clara Journal of International Law 1 (2010). In contrast, international criminal justice exerts countervailing pressures on the forces of dehumanization for both victims and suspects of grave crimes. International criminal law through both its aims and its incorporation of international humanitarian law and fundamental human rights norms in its corpus juriscan play a cardinal role in humanizing international law and politics, even in the realm of terrorism. Therefore, although I share Norbergs disapproval of the repressive results of ad hoc efforts to criminalize terrorism to date, I think classifying terrorism as an international crime subject to a supranational tribunals jurisdiction is essential for five reasons. First, treating terrorism as an international crime would help de-legitimize war as the only, best, or requisite response to terrorist threats and acts. Second, criminal investigations and prosecutions provide a systemic, corrective, non-belligerent alternative, although by no means the sole or sufficient one, to anti-terrorism military and political repression by governments. Third, providing redress for terrorist crimes through an international judicial branch would help check and balance executive and legislative branches wherein the margins of abuse of power and majoritarian discrimination against the other tend to be higher. Fourth, subjecting the crime of terrorism to ICC jurisdiction would help standardize national laws on terrorist crimes due to the Rome Statutes principles of complementarity, jurisdiction, and admissibility,23 which promote uniformity and specificity to a greater degree than the obligations of states under customary international law and United Nations resolutions to enact domestic laws, no matter how disparate, proscribing terrorism.24 Finally, victims of terrorism deserve rights equal to those that victims of other crimes of serious concern to the international community enjoy, as a matter of human rights, justice, and reconciliation,25 including the opportunity for reparations.
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TERRORISM IS CONCEPTUALLY SIMILAR TO OTHER CRIMES AGAINST HUMANITY BECAUSE THERE IS A SENSE OF SHARED VICTIMHOOD AMONG THE TARGETED POPULATION Kathleen Maloney-Dunn (Adjunct Professor, International Human Rights Clinic at Willamette University College of Law; Visiting Professional, Appeals Chamber, International Criminal Court, 2008.) Humanizing Terrorism Through International Criminal Law: Equal Justice for Victims, Fair Treatment of Suspects, and Fundamental Human Rights at the ICC, 8 Santa Clara Journal of International Law 1 (2010). [ Recognizing terrorism as a crime covered by the ICC would present equally complex victim issues, as terrorist attacks may indiscriminately harm individuals and institutions, including random or third party victims.40 Norberg, focusing mainly on such symbolic or indirect victims, avers that terrorism is fundamentally different from war crimes, crimes against humanity, and genocide, and concludes that ICC jurisdiction would neither deter contemporary terrorism nor bring justice to any more victims than is currently available.41 I disagree, particularly with this last point. Terrorism and its victims have much in common with core crimes over which the ICC exercises jurisdiction and with its statutorily-approved and jurisprudentially-approved victims. Whether a terrorist attack constitutes a mass atrocity that transcends national borders, such as 9/11,42 carefully designed to maximize fear or suffering,43 or involves sexual or gender-based assaults on individuals as a tool of local or ethnic terror,44 terrorism inflicts collective harms similar to those associated with war crimes, crimes against humanity, and genocide. Acts of large-scale terrorism, along with these three core crimes, have been characterized as [a]cts of atrocity . . . against the world community, or, more emotively, as offense against us all.45 As scholars have noted, at least with respect to mass killings: Terrorism is a shared experience because attacks are most often directed towards groups of people rather than individuals. . . . In addition, the particular group of people attacked is often chosen and based upon their symbolic membership in a larger racial, ethnic, or sociopolitical community. Thus, there is both a direct attack on a set of individuals and an indirect attack on an entire identified sociopolitical community.46 This commonality as well as the primary importance to victims of terrorist attacks and other atrocities of creating a historical record47 bolsters the argument for ICC jurisdiction over the crime of terrorism. A permanent trial record condemning atrocities such as widespread rape not only provides impetus for additional protection and prosecutions, perhaps deterring some future crimes, but also provides a voice to victims and reduces cultural stigmas against them.48
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INTERNATIONAL COURTS ENSURE ACCESS TO REDRESS FOR VICTIMS OF TERRORISM Kathleen Maloney-Dunn (Adjunct Professor, International Human Rights Clinic at Willamette University College of Law; Visiting Professional, Appeals Chamber, International Criminal Court, 2008.) Humanizing Terrorism Through International Criminal Law: Equal Justice for Victims, Fair Treatment of Suspects, and Fundamental Human Rights at the ICC, 8 Santa Clara Journal of International Law 1 (2010). [ If terrorism is excluded from the jurisdiction of the ICC, victims of terrorist crimes will remain without redress or public recognition except where their domestic legal system recognizes their rights to participate in criminal proceedings or administrative or judicial processes, and receive compensation. Victims seeking redress in foreign courts may also face barriers, even in the U.S.59 The exclusion of terrorism from crimes subject to international jurisdiction would amount to a collective normative determination that victims of terrorism should not have equal access to a system of adjudication, including the right to participate in proceedings, that the community of nations has endorsed for victims of similar crimes. This poses a particular dilemma for victims of terrorism located in jurisdictions that offer them no legal rights for terrorist wrongs. While any state can try jus cogens crimes such as war crimes, crimes against humanity, genocide, torture, slavery and other serious crimes under international law on the basis of universal jurisdiction,60 victims of terrorism have no such recourse per se;61 in any event, victims within and across state boundaries are at the mercy of prosecutorial discretion and citizenship requirements that hardly encourage hope, even if forum-shopping in such circumstances were possible. The response of such disenfranchised victims, especially stateless and displaced persons or refugees, without any forum where their harm can be addressed by civil or criminal systems, may involve reprisals, extra-judicial violence, or intergenerational transmission of grievances. Consequently, vicious cycles of vengeance create even more victims and higher barriers to international criminal laws goals of ending impunity and providing justice for victims. Codifying terrorism as an international offense whose victims are legally entitled to redress would help dismantle some of these domestic and transnational barriers to justice. Submitting the crime of terrorism to ICC prosecution, and hence complementary domestic jurisdiction, would help pressure states to refrain from ad hoc politically expedient, repressive, or belligerent measures to combat terrorism, thus circumscribing derogations from international legal norms. The current mayhem of disparate anti-terrorism solutions has created significant human rights problems, disregard for core principles of international law, and a weakening of the global legal framework painstakingly constructed over the last fifty years.62
12NFL1-Terrorism Due Process www.victorybriefs.com THE ICTY SHOULD BE EXPANDED TO TRY CRIMES OF TERROR
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Sofaer, Abraham & Paul Williams (2002). "Doing justice during wartime." Hoover Instituation Policy Review 111:4. A more pragmatic approach to creating an international mechanism that could supplement the use of military tribunals, and one that could have the advantage of displacing the ICC, would be to add to the jurisdiction of the existing ICTY crimes associated with terror wars no matter where or by whom they are committed. This could be accomplished through a U.N. Security Council resolution citing the authority of Chapter VII of the U.N. Charter, Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. The Security Council would have to markedly increase the ICTYs budget to provide for the hiring of a substantial number of personnel, in addition to modifying its organizational structure and mandating a number of overdue institutional reforms. Transforming the ICTY to deal with certain terrorist crimes is preferable to creating a new international mechanism for a number of reasons. After nearly eight years of operation the ICTY has an established set of rules of procedure and evidence and has a rational jurisprudence. The tribunal is perceived as fair and capable, with a competent prosecutor and a solid complement of trial and appellate judges, including a number of Islamic judges. The tribunal was in fact originally created in response to atrocities and war crimes committed against Muslims because of their religious identity. The tribunal should thus have a heightened degree of credibility among those who might otherwise be skeptical of an international tribunal. Moreover, as an institution with ample independence, yet created and supported by the Security Council and subject to its continuing review, the transformed Yugoslavia tribunal would avoid many of the political and practical afflictions of the ICC. While a U.S. military commission could be used to try most suspected terrorists and war criminals, the expanded Yugo/terrorism tribunal could be used to try top-level suspects and those who do not come into U.S. custody.
12NFL1-Terrorism Due Process www.victorybriefs.com COUNTER-TERRORISM
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THE BOUMEDIENE DECISION UNDERMINES BATTLEFIELD EFFECTIVENESS BY REQUIRING THE GATHERING OF EVIDENCE AND CREATES THE PERVERSE INCENTIVE TO KILL RATHER THAN CAPTURE Michael Chertoff [Secretary of Homeland Security, 2005-2009], Speech: The Decline of Judicial Deference on National Security, 63 Rutgers L. Rev. 1117 (Summer 2011). So, where has this left us? It has left us in a puzzling situation. In a decision called Al-Bihani in the D.C. Circuit in 2010, Judge Janice Rogers Brown talked about the consequences - practical n42 consequences - of having habeas review in Guantanamo as it affects the battlefield. And what she said is that the process at the tail end is now impacting the front end because when you n43 conduct combat operations, you now have to worry about collecting evidence. A somewhat darker analysis has been put forward by Ben Wittes who has recently written a book called Detention and Denial, where he argues that the courts have now created an incentive n44 system to kill rather than capture. And much of the law of war over the years was designed to move away from the "give no quarter" theory, where you killed everybody at the battlefield, into the theory of you would rather capture than kill. And his point, and you can agree or disagree with it, is that you have now actually loaded it the other way; you have pushed it in the direction of kill n45 rather than capture.
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AL-QAEDA IS MARKEDLY DIFFERENT FROM OTHER TERRORIST ORGANIZATIONS Scheid, Don (2010). Indefinite Detention of Megaterrorists in the War on Terror. Criminal Justice Ethics 29.1: p. 3-4 The kind of terrorism to be addressed in this essay is the sort of terrorism exemplified by alQaedas 9/11 attacks. At least four features distinguish this terrorism from other forms of terrorist activity. First, it has a global reach. Like a pandemic, this form of terrorism is not confined to a single state or locale. International terrorists recruit followers from all over the world and strike anywhere in the world. We are told, for instance, that al-Qaeda may have terrorist cells in some 50 to 60 countries. By contrast, most terrorism groups have been, and still are, national or regional in their operations. Although their funding may come from various parts of the world, most terrorist groups operate within a single country. For example, the ETA in the Basque part of Spain; Hamas in Gaza; Hizbullah mainly in Lebanon; and, until recently, the Tamil Tigers in Sri Lanka. Second, unlike the fairly well defined structures of some terrorist groups, the organization of al-Qaedastyle terrorism is extremely amorphous. There is no one with whom to negotiate*no one, apparently, who could effectively declare a ceasefire, no one with authority to conclude an armistice or peace treaty. This terrorism seems to be a kind of political/religious movement with a life of its own rather than an organized social entity. Third, this terrorism is stateless. The enemy is not associated with any nation-state, nor, indeed, with any specific geographical location. A terrorist group may have hideouts and training camps in a given country, but the group itself is not committed to that territory. Two significant consequences follow. First, international terrorism cannot be deterred by the threat of retaliatory strikes as was the case with the nuclear-deterrence doctrine of mutual assured destruction (MAD) during the Cold War. Second, an internationalterrorism organization is not responsible to any state, and, crucially, no single state has any control over it. Consequently, there is no recognized state to enforce a ceasefire agreement upon its terrorist-citizens, even if such an agreement could be achieved. A fourth, and the most important, feature that distinguishes al-Qaedastyle terrorism is its great lethality of mass murder. The development of science and technology has made it possible for terrorists to acquire highly lethal weapons and even biological, chemical, or nuclear weapons of mass destruction (WMD). Indeed, confirmed reports have established that Osama bin Laden and al-Qaeda have sought nuclear weapons.
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AL-QAEDA SHOULD NOT BE THOUGHT OF AS CRIMINALS WHO BREAK THE LAW BUT AS THREATS TO SOVEREIGNTY Scheid, Don (2010). Indefinite Detention of Megaterrorists in the War on Terror. Criminal Justice Ethics 29.1: p. 4-5. Since mega-terrorism, like all terrorism, is illegal, it might be thought of as a criminal activity. But megaterrorism really differs markedly from common crime and should be distinguished from it. Most crime is domestic, whereas mega-terrorism is global. More importantly, megaterrorists, such as al-Qaeda, (i) threaten a level of destructive violence far beyond virtually any form of criminal activity, and (ii) seek to challenge the legitimacy of state governments. Ordinary criminals (for example, burglars, auto thieves, rapists, murderers) affect only one or a few people. And run-ofthe-mill criminals do not present any direct challenge to the state or its legitimacy. Although such criminals can have devastating effects on their victims (and family and associates), they do not present a threat to the state as such. Al-Qaeda, for example, is more than a criminal cartel, for while its proclamations rarely express a coherent grievance, it implicitly challenges the political legitimacy of the United States. By contrast, organized international criminal groups, such as drug-smuggling gangs, do not normally challenge the state directly. Indeed, they have a very strong interest in a states prosperous economy. And though their activities can cause serious and widespread damage, they do not wreak the destruction of a 9/11. As the attacks of 9/11 forcefully demonstrated, the danger presented by 19 or 20 mega-terrorists is certainly far greater than that presented by any similar number of common criminals or crime-gang members. The 9/11 attacks directly killed some 3,000 people, injured hundreds of others, and caused at least tens of billions of dollars worth of damage to the American economy. Given its challenge to the legitimacy of the state and the magnitude of its destructiveness, mega-terrorism is certainly much more than ordinary criminal activity; it seems more like warfare. I tend to think of the struggle against international terrorism as a kind of quasi-war.
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INDEFINITELY DETAINING TERRORIST IS JUSTIFIED BECAUSE, IF RELEASED, THE TERRORISTS WILL NOT BE DETERRED FROM COMMITTING TERRORIST ACTS Scheid, Don (2010). Indefinite Detention of Megaterrorists in the War on Terror. Criminal Justice Ethics 29.1: p. 7 In saying a person is too dangerous to release, the implication is that, if released, he will not be deterred from further crime by the threat of future punishment. This may be because he is mentally out of touch with reality, or it may be that the person has overwhelming urges he cannot control. In the case of megaterrorists, the individual is undeterrable, presumably, because he is committed to carrying out terrorist activities as a matter of firm, ideological conviction and/or religious beliefs. The possibility of being captured and punished or losing his life does not deter him. In fact, the prospect of becoming a martyr for his cause may actually be a positive incentive, as it apparently is for some suicide bombers. Since the person is undeterrable, his conduct cannot be controlled or significantly influenced by the threat of future punishment. The states only realistic option, therefore, is preventive detention.
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NOT INDEFINITELY DETAINING TERRORIST SUSPECTS HAS ALLOWED THEM TO GO FREE AND RETURN TO TERRORIST ORGANIZATIONS Scheid, Don (2010). Indefinite Detention of Megaterrorists in the War on Terror. Criminal Justice Ethics 29.1: p.7 The case of Zacarias Moussaoui might serve to illustrate the point. Taking flying lessons is not a crime, even if he was uninterested in learning how to take off or land an airplane. Nevertheless, he was certainly dangerous and undeterrable. Here was an avowed terrorist who repeatedly expressed approval of al-Qaedas jihad against the United States and announced his own desire to kill as many Americans as possible. He stated, for example, I will be delighted to come back one day to blow myself into your new W.T.C. if ever you rebuild it. Imagine, contrary to fact, that Zacarias Moussaoui had been acquitted of all charges at his federal trial. The Moussaoui trial, in fact, was something of a circus. He was mentally unstable, filed crazy pleadings and, for some time, insisted on acting as his own counsel. He made speeches in court that compromised his defense, including belligerent behavior toward the judge, as well as toward both prosecution and defense lawyers; and, ultimately, he pled guilty. Had Moussaoui been a sane and shrewd defendant, the Government might well have failed to carry its burden of proof. In such circumstances, should the Government simply release him? To do so would be extremely foolish, as he would still present a continuing and extreme danger to the United States. Apart from this hypothetical, there are reports of any number of actual terrorism prisoners who have been released only to rejoin jihad and their fight against the West. For example, one Guantanamo detainee, Abdullah Ghulam Rasoul, was transferred to Afghanistan in 2007 and then released by the Kabul government. According to reports, he is now the commander of operations for the Taliban in southern Afghanistan. Another detainee, Said Ali al-Shihri, was returned to his native Saudi Arabia in 2007 and is now reportedly a leader of al-Qaedas affiliate in Yemen.
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NON-CITIZENS SHOULD BE GIVEN DUE PROCESS PROTECTIONS EXCEPT WHEN THEY POSE THE RISK OF CATASTROPHIC HARM; THEN THEY SHOULD BE INDEFINITELY DETAINED Madeline Morris, Frances Eberhard, & Michael Watsula (2009). "After Guantanamo: war, crime, and detention." Harvard Law and Policy Review Online 3, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2630&context=faculty_scholarship&se i However, in those cases where terrorist activities threaten catastrophic harm, the balance of risks is shifted. Attacks threatening catastrophic harm exceed the scope of the risks that the criminal justice system is designed and equipped to handle. As discussed earlier, the criminal law is designed to reduce, but not entirely to prevent, the conduct that it proscribes. Here, jus ad bellum is the appropriate body of law to govern; catastrophic armed attack is precisely the subject matter for which the law of war was designed. The implications of this analysis for the disposition of the current detainees are, perhaps, counterintuitive. The detainees who pose the very most serious threat if released those who are, likely, also the most culpable detaineesshould not be among those prosecuted. For detainees whose release would pose a threat of catastrophic harm, the appropriate approach is detentionpursuant to the recognized right of states to use force, including detention, in self- defense against armed attack. The detention of persons within this group is a principled application of the law of war, and is prudent and responsible policy. The proper candidates for prosecution are those who, for standard criminal-justice reasons, should be subject to trial and punishment (even beyond their incarceration at Guantanamo), but whose acquittal would not pose a threat of catastrophic harm. If, within that group, there are some who cannot be prosecuted because the evidence against them has been tainted through coercion, or because their prosecution would require the disclosure of classified information that cannot be disclosed consistent with national securitythen those detainees may be released rather than prosecutedwithout engendering a threat of catastrophic harm. This is the kind of choice that is faced routinely by prosecutorsfor instance, in organized crime cases involving classified evidence. The policy indicated, then, is reliance on criminal prosecution for counterterrorism except in instances of terrorist activity posing a threat of catastrophic harm, for which law-of-war detention is warranted. In keeping with this policy conclusion, the proposed Counterterrorism Detention, Treatment, and Release Act provides authority to detain only individuals engaging in catastrophic armed attack against the United States. Each component of that classification is defined in Subchapter I of the Act.
12NFL1-Terrorism Due Process www.victorybriefs.com DETAINEE STATUS
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THE THIRD GENEVA CONVENTION DOES NOT APPLY TO DETAINEES ACCUSED OF MEMBERSHIP IN AL QAEDA Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 It is established that military commissions are constitutional and that the procedures by which they are governed are established not by statute but by the common-law tradition. 88 The court, according prisoner-of-war status to Mr. Hamdan,89 determines that the trial of Mr. Hamdan before a military commission would violate the Geneva Convention, which is recognized as a law of war. 90 However, assuming arguendo that Mr. Hamdan should be designated as a prisoner-ofwar under the Geneva Conventions, the court's analysis is still flawed. The Third Geneva Convention applies in "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties ... ,,91 The district court assumes that this describes the situation of Mr. Hamdan's capture. However, this is not clear at all. Mr. Hamdan is a Yemeni national who was a member of an international terrorist organization, al Qaeda. He was captured in a war not against any state or party to the Geneva Convention, but against global terrorism. The Third Geneva Convention states: Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. 92 The Convention makes no reference to non-state actors or international groups. Rather, the text specifically refers to 'Powers' in conflict, a term generally understood to refer to sovereign states. It stands to reason, based upon the text of the Convention, that the Third Geneva Convention does not apply to those who fight on behalf of al Qaeda or similar terrorist organizations. Furthermore, acts of terrorism committed by groups such as al Qaeda are not traditionally regarded as creating an armed conflict and therefore are outside the scope of international humanitarian law and the Geneva Conventions.93 The British campaign against the Irish Republican Army (IRA) and the Spanish campaign against Euskadi ta Askatasuna (ETA) have not been treated as armed conflicts.94 Therefore, it follows that the American campaign against al Qaeda, to the extent that the United States does not become involved in armed conflict with another state, is also outside the scope of the Geneva Convention.95
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MEMBERS OF AL QAEDA ARE NOT PRISONERS OF WAR UNDER THE GENEVA CONVENTION Tannenbaum, Jessica Erin [J.D. Candidate, Notre Dame Law School] (2005) "Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions," Annual Survey of International & Comparative Law: Vol. 11: Iss. 1, Article 5. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol11/iss1/5 It is evident that detained al Qaeda members are not Prisoners of War as defined by the Convention. Al Qaeda is not a party to armed conflict within the meaning of the Geneva Conventions, as discussed supra, because it is not a state but an international terrorist group outside the scope of international humanitarian law. Detainees from 'other militias' or 'volunteer groups,' into the definition of which al Qaeda may fit, must meet the criteria articulated in section two of Article 4, Paragraph A, quoted supra. Al Qaeda members do not meet these criteria. First, al Qaeda fighters are not commanded by a person responsible for his subordinates. Rather, it is a loosely structured organization made up of numerous cells, sending operatives and funds to support acts of terrorism. III Second, al Qaeda has no distinctive or recognizable sign.112 Al Qaeda members do not generally carry arms openly, rather they resort to suicide bombings and other clandestine forms of attack. Most significantly, perhaps, al Qaeda does not conduct its operations in accordance with the laws and customs of war. Al Qaeda, as a non-state actor, is not bound by any of the international treaties which make up the laws of war; however, al Qaeda does engage in acts that would plainly violate the laws of war. The Geneva Conventions require that civilians "shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."113 Al Qaeda deliberately targets civilians, with the aim of killing "infidels,"114 a distinction plainly based on religion. The Geneva Conventions also forbid the taking of hostages,115 a tactic in which al Qaeda has repeatedly engaged, and generally require that attacks avoid civilian and non-military targets whenever possible. 116 Even though al Qaeda is not bound by the Conventions, attacks on civilian targets in the manner they are committed by al Qaeda clearly violate the customs of war. Al Qaeda operatives are not members of regular armed forces professing allegiance to any other government or authority. Based on these facts, no doubt can remain that al Qaeda operatives are not prisoners of war and therefore are not eligible for the protections of the Third Geneva Convention.
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TO PROTECT INDIVIDUAL LIBERTY WHILE INDEFINITELY DETAINING, THE USFG COULD MAKE AVAILABLE INDEPENDENT INVESTIGATIVE TEAMS Scheid, Don (2010). Indefinite Detention of Megaterrorists in the War on Terror. Criminal Justice Ethics 29.1: 13-14. One way of reducing erroneous detentions would be for the government to make available the services of independent investigative teams. As things now stand, lawyers who represent terrorism suspects receive no more help from the state than does a normal criminal-defense lawyer in the domestic criminal-justice setting. But just as the state provides counsel for indigent defendants, the state should also provide independent investigative teams for mega-terrorist detainees. Such teams might be made up of individuals trained in legal and forensic matters, as well as foreign language translators. These teams would be tasked with doing everything necessary to gather all relevant evidence, at home and abroad. This would normally include, at the very least, traveling to the relevant countries; obtaining testimony from military personnel and civilian witnesses; interviewing friends, acquaintances, and family members of detainees; collecting affidavits and other important documents; and so forth. Of course, the evidence collected could not include secret evidence gathered by government agents from secret sources. The investigative teams would simply collect the kinds of evidence normally available in routine investigations. All the evidence so gathered would be made available to both parties in any hearing or proceeding concerning a prisoners indefinite detention. The United States should spare no expense in fielding the necessary investigative teams. The more effort and expense the United States undertakes to ensure that the prisoners it holds truly are mega-terrorists, the more solid will be its moral position concerning their preventive detention. As a country with the ability to place military forces around the world, the United States certainly has the wherewithal, if it chooses, to dispatch investigative teams anywhere in the world.
12NFL1-Terrorism Due Process www.victorybriefs.com SOCIAL CONTRACT
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EXTENDING THE SAME DUE PROCESS PROTECTIONS TO NON-CITIZEN TERRORIST SUSPECTS CHEAPENS THE RIGHTS OF CITIZENS McCarthy, Andrew (2004). "Terrorism on trial." Case W. Res. J. Int'l L. 36.513: 521. Since we obdurately declare we are according alleged terrorists the same quality of justice that we would give to the alleged tax cheat, we necessarily cannot carry all of this off without ratcheting down justice for the tax cheat-and everyone else accused of crime. Civilian justice is a contained, zero-sum arrangement. Principles and precedents we create in terrorism cases generally get applied across the board. This, ineluctably, affects a diminution in the rights and remedies of the vast majority of defendants-for the most part, American citizens who in our system are liberally afforded those benefits precisely because we presume them innocent. It sounds nice to say we treat terrorists just like we treat everyone else, but if we really are doing that, everyone else is being treated worse, and that is not the system we aspire to. Worse still, this state of affairs incongruously redounds to the benefit of the terrorist. Initially, this is because his central aim is to undermine our system, so in a very concrete way he succeeds whenever justice is diminished. Later, as government countermeasures come to appear more oppressive, it is because civil society comes increasingly to blame the government rather than the terrorists. In fact, the terrorists-the lightening rod for all of this-come perversely to be portrayed, and to some extent perceived, as symbols of embattled libertarian principles, the very ones it is their utopian mission to eradicate. The ill-informed and sometimes malignant campaign against the Patriot Act is an example of this dynamic.

Terrorism Due Process Brief LD Debate

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LINCOLN-DOUGLAS | September/October 2012

12NFL1-Terrorism Due Process www.victorybriefs.com

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AFFIRMATIVE EVIDENCE ........................................................................................... 99

CHECKS AND BALANCES................................................................................................................. 104

WAR PARADIGM VERSUS CRIMINAL JUSTICE PARADIGM ................................................................... 115

12NFL1-Terrorism Due Process www.victorybriefs.com

PROCEDURAL FAIRNESS................................................................................................................. 121

HUMAN RIGHTS ............................................................................................................................. 127

INDEFINITE DETENTION................................................................................................................... 131

MILITARY TRIBUNALS ..................................................................................................................... 134

12NFL1-Terrorism Due Process www.victorybriefs.com

INTERNATIONAL COURTS ................................................................................................................ 154

ENEMY COMBATANT DESIGNATIONS ............................................................................................... 156

NEGATIVE EVIDENCE ............................................................................................... 161

MILITARY COMMISSIONS VERSUS FEDERAL COURTS ........................................................................ 164

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

INTERNATIONAL COURTS ................................................................................................................ 205

COUNTER-TERRORISM ................................................................................................................... 212

DETAINEE STATUS ......................................................................................................................... 218

SOCIAL CONTRACT ........................................................................................................................ 221

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

Topic Analysis by Jane Kessner

12NFL1-Terrorism Due Process www.victorybriefs.com

Definitions and Interpretational Issues

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

Same constitutional due process protections

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

Affirming Helps US Citizens/Peaceful Non-Citizens

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12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

Topic Analysis by Geoffrey Kristof

TOPICALITY & DEFINITIONAL ANALYSIS:

Random House Dictionary

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Legal Dictionary Random House Dictionary

12NFL1-Terrorism Due Process www.victorybriefs.com

GENERAL INTERPRETATIONAL ISSUES

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12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

12NFL1-Terrorism Due Process www.victorybriefs.com

Topic Analysis by Dave McGinnis

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12NFL1-Terrorism Due Process www.victorybriefs.com