More on Domestic Terror Courts

by Roger Alford

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.

http://opiniojuris.org/2007/07/17/more-on-domestic-terror-courts/

14 Responses

  1. 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 one adopted by all four of the states except the US.

    As to the Moussaoui trial, unless I am mistaken Moussaoui was found guilty by a jury and is sitting in a prison as are many terrorists.

    His proposal to the United States rests on a false premise which is the “policy and legal ambiguity” of the past five years. This is more euphemism. The legal situation has not been ambiguous but the policy types have intentionally sought to create the appearance of legal ambiguity in order to do their nefarious deeds while extracting persons from the legal hierarchy with the attendant human rights violations.

    His use of a descriptional term “armed conflict short of war” continues the effort to create some space – to create a black hole and then propose a solution to face it. It leaves to the side the enormous effort that was put in place to come to the term “armed conflict” to avoid precisely the kind of definitional issues/games of declaration of war or not. We did this two generations ago and I see no need to repeat that.

    His recommendation:

    “How should we go forward? It is suggested that in the American setting, amending the FISA

    court legislation, whereby suspected terrorists would be brought to trial before the court, would

    resolve the policy and legal ambiguity of the past five years. Such Congressional initiative would

    enable the trying of suspected terrorists before a civilian court skilled and competent in issues

    inherently specific to terrorist trials. As the Moussaoui trial clearly exhibited, traditional Article

    III courts are ill-equipped for such trials. It is recommended that trials of individuals suspected of

    involvement in terrorism would be heard before a bench trial, without a jury, to allow the

    introduction of intelligence information that would not be made available to the defendant nor

    counsel. While violative of the 6th amendment right to confront the accuser, a court specifically

    trained in reading and analyzing the reliability of intelligence information would satisfy a

    balancing test whereby the State could introduce such information subject to strict judicial

    scrutiny by an independent court.”

    One great irony is Guiora’s fear of jury trials the lack of which is precisely one of the reasons the US is ostensibly opposed to the International Criminal Court. Amazing!

    Best,

    Ben

  2. 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.

  3. Dwight,

    Thanks for clarifying my “senior moment” on Moussaoui. Greatly appreciated.

    Best,

    Ben

  4. 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.

  5. 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 summary executions. As for the rest, you can draw your own conclusions. (And I am not refering to you Mr. Davis)

  6. 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.

  7. 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.

  8. 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

  9. 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 maintains our adversarial system. Having a mixed adversarial/inquisitorial system (as Amos and others propose) seems a flawed approach which is destined for failure, has the potential for abuse, and inconsistent with American notions of justice. While our legal system has its flaws, I find it preferable when facing government secrecy. Somebody not “in” the government or its intelligence community must have access to all information in order have a fair trial of the evidence. That hearing must be presided over by someone also not “in” or subject to manipulation or control of these agencies.

    Implementation of each and every detail is sure to be difficult and expensive. However, think of the domestic and international legitimacy a closed proceeding would have if one of it participants, a defense counsel, could walk out and say – I had access to all of the relevant information and complete freedom to present evidence on my client’s behalf – and – while we strongly disagree with the result, the process was as fair as we could have hoped for.

    Are their risks on both sides? Sure. Can it practically be done? I am reasonably certain it can. Can it politically be done in this country? Hope springs eternal – but ideologues on both sides of the issue must give up their entrenched positions and make concessions. When lawyers and academicians have trouble casting aside their preconceived notions of what is possible, I have even less hope that politicians can do so. When Amos is willing to elevate near-absolute government secrecy over the right of one facing punishment or indefinite detention to see the evidence against him – I have serious concerns that in our pursuit of academic insights, we have lost sight of what our Constitution stands for.

    Comparative analysis might be in vogue – but it is largely inappropriate for analyzing DOMESTIC legal issues. Last I checked, our Constitution is an original. Each time I read it and other documents of the era, I am amazed by the skill of our framers in crafting such a wonderful document.

  10. 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!

  11. 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)

  12. 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 power. All face threats from Islamic extremists. As such, they make a more apples-to-apples comparison when looking at the US in context. Compared to these better comparators, the US does a pretty good job of respecting international law.

    Simply put, to put forth Europe as the be-all comparator is Eurocentric, and I would expect someone with progressive sensibilities to avoid Eurocentricism. Tell me where I am wrong.

  13. 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 Bellinger line in his speech at the Hague recently. I am happy that the US and EU comply pretty well with their trade related internatinal law obligations to each other. I do have a few qualms about the discrimination against imports from the third world of both of them (Common Agricultural Policy in Europe and farm policy in the United States) but that is another debate.

    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.

    (BGD) On projecting power, Britain and France unilaterally, in coalitions, and under UN supervision do this. Germany and Italy project in UN and Nato (I remember Italians in Iraq and in Lebanon years back). I understand that for you these states are not comparators because they do not (except I guess Britain) project military power ENOUGH for your tastes. Of course, France (in particular) projects both military and economic power around the world but maybe those are places (like in Africa) that you do not think count ENOUGH. And, of course, Italy projects its economic power.

    (BGD) They ALL have at least European regional security threats and responsibilities. France of course on several occasions has intervened in Francophone countries some with and some without Islamic threats. ALL – with the possible exception of the Germans – have been in the Middle East and North Africa for at least 150 years (Napoleon invading Egypt back in the day in the 18th century; Italy in Libya). Of course, if we consider Britain’s time as part of the Roman Empire (not the Holy Roman – the Roman) we can get back to that too – but maybe that is a stretch.

    (BGD) As to economic power, I worked in international arbitration for 14 years and saw cases that confirm this if it does not appear obvious from what we see in the news everyday.

    Therefore, Israel, Russia and India (and I would add China) are better comparators. All are regional powers with the ability to project power. All face threats from Islamic extremists. As such, they make a more apples-to-apples comparison when looking at the US in context. Compared to these better comparators, the US does a pretty good job of respecting international law.

    (BGD) Since I have quibbles with your premise you can see that I might continue to take issue with your comparators. I have no doubt that all are regional powers but I am curious about what you want to mean by “project power”. Does that mean that they all have nuclear weapons and that is the key comparator? India has had battles with Pakistan about the Kashmir issue and has sent some troops into Sri Lanka for some of the difficulties there but that certainly does not seem to rise to the level of “projection of power” that would be equivalent to the United States. Russia as a former superpower with a huge nuclear arsenal up until 17 years ago was a communist state and is a very young democracy (if it remains that). The kinds of criticisms I read about the internal legal system of Russia do not lead me to think that I should make it an easy comparator. Israel is barely 60 years old – a democracy with enormous difficulties from its short history (several wars etc). It projects once in a while to neighbors (Lebanon, Jordan, Egypt and one overflight to Iraq on OSIRAK). Now, its secret services have gone to places like Argentina to pick up old Nazis. As to China, China is projecting economic power everywhere in the world it seems right now and is likely also projecting military power. The main intervention recently were the Indo-Chinese struggle back in the 60’s and the China-Vietnamese struggles. Obviously, they sell or lend arms in their communist and reformist phases as part of building their power. Of course, they have not respect for human rights which we at least profess.

    (BGD) As to all facing threats from Islamic extremists, yes yes of course they do. As do the Indonesians and everyone else that has had a bomb explode in a subway or some place. Obviously, Israel is experiencing that more acutely than the rest of them with the Russians in Checheny experiencing that second. There is some problem with the Uighur for the Chinese. But, the Algerians have been experiencing this too as have the Egyptians. I do not find the Islamic extremist metric to be one that makes any of these such a profoundly excellent choice or the only choice as a comparator.

    Simply put, to put forth Europe as the be-all comparator is Eurocentric, and I would expect someone with progressive sensibilities to avoid Eurocentricism. Tell me where I am wrong.tream Dream

    (BGD) I would agree with you but I would note that I did not put Europe only. Sometimes I am a progressive but on this stuff I think I tend to be a traditionalist really. It is not that you are wrong, it is just that we disagree about these things. That is why we dialogue about them.

    I disagree with Guiora’s choices and effort at hybridization of the law to create a way to do awful things to people in violation of international law (Geneva Conventions etc). I tend to think of those documents as the considered wisdom of states (now 192) that have gone through horrendous experience. No need to remake the law just so you can hurt a few people. I mean you can read about wars against private persons in Grotius for pete’s sake and he goes back to the Romans. We flatter ourselves to think that all this is new. Doesn’t anyone remember the Alhambra and the battle of Poitou when the Saracens came up the Iberian peninsula towards Europe? As to WMD’s, it seemed to me that those man-o-war were pretty definitely WMD’s in their time and pirates laid waste to places with them too. That was why we had the Barbary Wars, right?

    As to folks who are hung up on this as a religio-ideological thing, blind allegiance to anything (God told me to do it, the Emperor told me to do it, the President told me to do it) whatever is not a new phenomenon. People willing to do suicide (Doolittle’s suicide mission in World War II, the Kamikaze on the other side) – I mean please. Targeting civilians – target/collateral damage dichotomy back to Dresden, Hiroshiman and the rest of it. Lot’s of good things get hijacked by folks seeking to gain/retain power through violence. Look at the use of the Bible as a basis for preserving slavery as “the Lord’s will”.

    On the ASILForum, someone sent a link short description to an interview with Guiora where he is looking at this battle with Islamic extremists as a 100 years war. Does anyone else share that view on this list serv? If you do share that view, then do you really think the United States is approaching such a struggle in a meaningful manner – or are leaders are being straight with us?

  14. Sorry for the couple of typos here or there.

    Best,

    Ben

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