17 Jul More on Domestic Terror Courts
Continuing the discussion on the establishment of a domestic national security court, be sure to check out Amos Guiora’s post over at National Security Advisors law blog outlining his recent article forthcoming in the Catholic University Law Review on a “domestic terror court.”
The article is very useful because it takes a comparative approach that examines the practices of holding detainees in the United States, Russia, Israel, India, and Spain. Here is a key quote from the conclusion of the article:
The United States, post 9/11, clearly represents the extreme end of the spectrum–terrorists are enemy combatants to be detained in Guantanamo Bay, Abu Ghraib or so-called “black sites.”… Unlike Israel, Russia, India and Spain, which regularly try terrorists, the Bush Administration’s intial handling of the fundamental issue … has resulted in a clear policy failure. By over-reaching, by establishing a judicial paradigm inconsistent both with Article III requirements and international law guarantees, the Administration opened the door to wide-spread criticism, which was not long in coming. While the U.S. continues to hold hundreds of detainees for trial, terrorist defendants held by the other nation’s surveyed in this article have been brought to trial in accordance with the traditional criminal law paradigm or detained in accordance with an administrative law process subject to independent judicial review.
A few quick thoughts as I work on another article. A bad idea gets worse even with a comparative analysis. I regret that Guiora does not look at the British, French, Germans and Italians who have all had extensive experience with terrorists. It would also be of interest to compare the five approaches described with what was done in Brazil, Argentina, Chile, and Franco’s Spain back in the day of Pinochet and the generals to see whether similar tacks to what is being proposed by Guiora were taken in those countries. We can all at least remember I hope the enormous human rights abuses in those systems. The Russian, Indian and Israeli approaches have been subject to fairly extensive objections for human rights violations. Why pick three of your four choices from countries where these kinds of concerns are being raised? These are not the only countries having to deal with terrorism and two of them are dealing with armed conflict (Russia and Israel) on a fairly regular basis in very peculiar circumstances of internal or close by insurrections – a completely different paradigm from the United States. Even with that, Guiora notes that the criminal law paradigm is the… Read more »
Moussaoui pleaded guilty — the jury heard the death penalty phase.
http://www.cnn.com/2005/LAW/04/22/moussaoui/index.html
It is contradictory for Guiora to advocate Miranda rights for defendants, and to say that interrogations would have to stop if the defendant invoked their right to counsel, yet also say he would allow coercive interrogation techniques. What defendant would willingly submit to such an interrogation, and what lawyer would advise a client to submit to such an interrogation? If a defendant initially decides to talk, can he then be coercively interrogated if the security services are not satisfied with the answers?
A major problem with Goeira’s proposal is that he would allow conviction on secret evidence. The 50% rule is a pretense.
These attempts to have it both ways, papering over fundamental problems, will not work. Either you value liberty over “security” (as defined in a secret court), or you don’t.
Dwight,
Thanks for clarifying my “senior moment” on Moussaoui. Greatly appreciated.
Best,
Ben
You’re welcome. It’s a quibble, really, because in either case, the system either worked or didn’t work. I’m not sure it can work on the government’s terms.
I have to admit Mr. Davis: I love your passion!!! Although I do not know much about laws, I will try to answer your question you posed regarding the comparison between countries such as Argentina and what has been happening here in this country (and very briefly). My credentials are that I was born and raised there. I did have my life threatened, I survived a terrorist bombing, and finally, when the military went to pick me up at my work place, I had already left the country before the two trucks full of sodiers stoped by my work place. The military did suspend the Habeas Corpus. They would kidnapp people. Some of these people would be transfered to other countries (Operation Condor. They would disappear people. Whenever they wanted to legitimize their actions, they would have show trial. However, most of them were held without charges and without a trial for long periods. Out of all the disappeared, only ONE PERCENT had actually had anything to do with terrorism. The only difference I can find, is that the the military at the time conducted summary executions. Although it is too early to tell if this country has conducted any… Read more »
I love how people who would normally lament the Eurocentric nature of international law suddently warm to the gentle embrace of an all-Europe comparator for the U.S.’s response to terrorism.
Thanks. If this is directed at me I am a little baffled as I asked about both European and South American experience. Why these four Europeans? It was simply that they are four relatively prosperous Western democracies with substantial sized populations which have had experience with terrorism. These seemed to be the most similar to the United States. How they approach these matters in their domestic law seemed would be enlightening.
Cruz del sur.
Thank you for your kind words. Thank you for also being willing to tell of your personal experience in such a setting. I think that is very helpful for people to appreciate what is at stake.
Best,
Ben
I think it is important to distinguish, in our dialogue and comparative analysis, between domestic terrorism with transnational support and transnational terrorism with domestic cells. Certainly, domestic terrorism in many cases involves international support from other state and non-state actors. Let’s recognize that a multinational, loosely-organized terrorist organization with training, arming, funding, and other operations being conducted in and against numerous nations presents a different scenario and threat…one that does not fit simply or meatly within existing international or domestic law – armed conflict or otherwise. I again emphasize that I do not mean to imply that there is no relevant existing law or legal principles on point. There certainly are. Creating a legal black hole is not my idea of upholding the rule of law. However, expanding existing domestic and international legal principles to encompass this situation requires – in my humble opinion – measured thought which undertakes balanced analysis of the current situation – rather than an intense focus on simlar situations or past abuses in our world’s or nation’s history. I recognize that the tipping point in that balance is different for each of us. I much prefer the G-K approach to these others being mentioned. It… Read more »
And yes, I can be counted on for at least one typo per post. In this case…”meatly” rather than “neatly”.
A pleasant day to you all!
Why is it that I have the impression that such a court would never convict these terrorists (PDF)
By the way, I mentioned above that I was born and raised in Argentina. I also should mention that I have dual citizenship, and as a side note, Dad was Army intel in WWII, and then volunteered to the Counter Intelligence Corp as soon as the war ended. (That is I am not Anti-American)
Ben, I was refering to your disappointment “that Guiora does not look at the British, French, Germans and Italians” and that he did look to the “Russian, Indian and Israeli approaches.” I’m sorry, but this begs the question as to why Europe is always presented as the relative comparator when comparing America in the context of terrorism. Here is my theory. America is not an outlier generally in its adherence to international law when compared to the most similar states. In trade, the US is most like the EU as far as power, etc. Accordingly, the US and EU have very similar records vis-a-vis adherence to WTO decisions. In fact, I would submit that the US is actually better about following the rule of law than than the EU in the area of trade. Regarding terrorism and the use of force, Britain, France, Germany and Italy are not valid relative comparators. Only one can reasonably project power beyond its borders. None face a threat to its very being from Islamic-based terrorists. None have regional security threats or responsibilities. Therefore, Israel, Russia and India (and I would add China) are better comparators. All are regional powers with the ability to project… Read more »
New Stream Dream see comments with (BGD) after them I was refering to your disappointment “that Guiora does not look at the British, French, Germans and Italians” and that he did look to the “Russian, Indian and Israeli approaches.” I’m sorry, but this begs the question as to why Europe is always presented as the relative comparator when comparing America in the context of terrorism. (BGD) I am a bit mystified since as I noted before I was suggesting comparisons with South American as well as European cases. As to the “why Europe is always presented” part it is a generalization that I can neither confirm nor infirm so I think it is pointless to try. Here is my theory. America is not an outlier generally in its adherence to international law when compared to the most similar states. In trade, the US is most like the EU as far as power, etc. Accordingly, the US and EU have very similar records vis-a-vis adherence to WTO decisions. In fact, I would submit that the US is actually better about following the rule of law than than the EU in the area of trade. (BGD) This appears similar to the John… Read more »
Sorry for the couple of typos here or there.
Best,
Ben