Amos N. Guiora, Due Process and Counterterrorism

• Publication year: 2010

DUE PROCESS AND COUNTERTERRORISM

Amos N. Guiora*

Counterterrorism—like terrorism—is a reality. Nations have the absolute obligation and right to protect innocent civilians against those seeking to harm them. However, implementation of counterterrorism obligations must be tempered by due process. The essence of democracy is granting—and protecting—the civil and political rights of attacker and attacked alike. Failure to provide due process to individuals suspected of involvement in terrorism leads a society down a slippery slope from which there is no return. While controversial and perhaps unappetizing, the true test of democracy is protection of those seeking to attack it.

This Article examines counterterrorism from the perspective of detention, interrogation, and trial, and in particular how these three processes are articulated and implemented. The broader question is whether the contemporary counterterrorism paradigm is based in due process or in a legal, not necessarily lawful, regime that minimizes individual rights. That is, does civil, democratic society discard core principles in the face of an ongoing, viable threat; or are political rights and national security rights effectively balanced in order to protect both? Answering this question requires analyzing the interface between threats and rights, and in particular the extent to which society responds to the former while protecting the latter.

The challenges facing national decision-makers are extraordinary, as the public demands concrete measures in response to attacks. Decision-makers are charged with simultaneously protecting both the law and the public in accordance with core values of rights and morality. Balancing these competing responsibilities manifests in what I refer to as the “dilemma of the decision-

maker.”1 The terrorism/counterterrorism paradigm manifests these tensions

and uncertainties in a more powerful manner than perhaps any other issue

* Professor of Law, S.J. Quinney College of Law, University of Utah; author of Freedom from Religion:

Rights and National Security (2009). Many thanks to Katharine Tyler (J.D., S.J. Quinney College of Law, University of Utah (2011)) for her insightful editorial comments and suggestions.

1. See Counter-terrorism Simulation: The 2010 Sim, S.J. QUINNEY COLL. L., http://simulation.law.utah.

   edu/past-sims/sim-2010 (last visited Apr. 1, 2012) (showing snippets of a scenario-based counterterrorism simulation exercise, in which students role-play decision-makers addressing complex, operational counterterrorism dilemmas).

   confronting contemporary decision-makers and the public. The public’s visceral reaction to feeling threatened is reflected in a 2009 survey, finding that “[f]ifty-eight percent (58%) of U.S. voters say waterboarding and other aggressive interrogation techniques should be used to gain information from

   the terrorist who attempted to bomb an airliner on Christmas Day.”2

   
   

   Terrorism, in its broadest articulation, is the constant threat faced by decision-makers mandated with ensuring that national institutions are sufficiently prepared to act both proactively and reactively; preferably the former, but if need be, the latter. The public demands solutions and minimal

   accommodation of terrorists.3 However—public demands notwithstanding—

   operational counterterrorism cannot justify discarding civil and political rights. Benjamin Franklin’s much-cited words of wisdom—“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty or safety”4—capture the essence of this constant and unremitting tension. Franklin’s words concisely and accurately reflect the overwhelming danger

   posed by overreaction to a clear and present danger, whether perceived or real. With respect to the paradigm before us—due process and counterterrorism— Franklin’s words spoken more than 200 years ago capture the essence of the existential, philosophical, legal, and practical dilemmas of counterterrorism conducted in societies subject to the rule of law.

   
   

   Addressing this powerful tension, fraught with danger, is a fundamental challenge confronting decision-makers on a daily basis. Resolving it effectively defines the essence of a democratic regime. In exploring these competing tensions, this Article is divided into the following six Parts:

   
   

   Part 1: Terrorism defined;

   Part 2: Due process defined in the context of counterterrorism; Part 3: Detention criteria and standards;

   Part 4: Interrogation regimes and rights; Part 5: Judicial forums; and

   
   

2. 58% Favor Waterboarding of Plane Terrorist To Get Information, RASMUSSEN REP. (Dec. 31, 2009), http://www.rasmussenreports.com/public_content/politics/general_politics/december_2009/58_favor_waterbo arding_of_plane_terrorist_to_get_information.

3. J. Daniel Moore, Intelligence in Recent Public Literature, 46 STUD. INTELLIGENCE, no. 1, 2002

   (reviewing PAUL R. PILLAR, TERRORISM AND AMERICAN FOREIGN POLICY (2001)), available at https://www. cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/studies/vol46no1/article07. html.

4. BENJAMIN FRANKLIN & WILLIAM TEMPLE FRANKLIN, MEMOIRS OF THE LIFE AND WRITINGS OF

   BENJAMIN FRANKLIN, LL.D. 270 (1818).

   Part 6: Moving forward.

   
   

   1. TERRORISM DEFINED

      
      

      Applying due process to counterterrorism initially requires defining terrorism; otherwise, the discussion is vague and amorphous. While the requirement to define terrorism is largely—but not unanimously—agreed upon as essential, much disagreement surrounds the actual definition.5 To that end, I

      propose the following definition, which addresses the core essence of terrorism:

      
      

      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.

      
      

      This definition incorporates the critical aspects of attacking civilian targets randomly for the purpose of advancing a specific cause, devoid of pecuniary or personal gain for the actor.

      
      

      Counterterrorism should be simultaneously viewed from two distinct perspectives. One branch of counterterrorism consists of 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 latter branch’s target audience is those who can be dissuaded. These are individuals who understand that 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.

      
      

      The burden is—fairly or unfairly—imposed on the nation-state to demonstrate the positives inherent to progress and development. Failure to fully embrace this burden reinforces the negativity that is an inevitable by- product of operational counterterrorism, which inherently conjures negative images for those living amongst the terrorists. While those who live amongst terrorists may oppose terrorism principally for the damage caused to the

      
      

5. Terrorism: The Problems of Definition, CENTER FOR DEF. INFO. (Aug. 1, 2003), http://www.cdi.org/ program/document.cfm?documentid=1564&programID=39&from_page.

   community and therefore—tacitly—understand the legitimacy of operational counterterrorism, speaking out in opposition exposes them and their families to extraordinary harm and risk. Therefore, soft counterterrorism is a critical weapon the nation-state can use that is no less potent than more conventional counterterrorism weapons.

   
   

   To determine the efficacy of particular counterterrorism measures— whether operational or soft—terms must be defined. Framing the discussion with adequate parameters allows for rigorous analysis.6 One of the realities of homeland security is that threats, risks, and dangers are largely murky and, consequently, unarticulated to the public. However, in order to maximize

   protection of due process rights, viable, direct, and concrete threats must be distinguished from indirect threats that do not pose imminent harm to the nation-state. The danger in decision-makers viewing all threats as viable and valid is to minimize cautious discernment, thereby significantly enhancing the

   danger of overreaction and, therefore, violations of individual rights.7

   
   

   One of the key challenges of counterterrorism is that it is difficult to identify targets; this suggests a fundamental lack of clarity and conciseness. Therefore, decision-makers must specifically determine and narrowly define both what is a legitimate target and when the target poses a threat justifying

   operational engagement.8 The failure to engage in a robust debate regarding

   both definition and application directly contributes to operational overreaction, which has tactical and strategic ramifications that, in the main, prevent effective counterterrorism, whether “operational” or “soft.”

   
   

   Definitions minimize amorphousness, thereby reducing wiggle room otherwise available to the executive branch. This is particularly important with respect to the due process discussion; by failing to clearly define what rights are to be protected, the ability to minimize rights is greatly enhanced. In the tension and fear that pervade the terrorism/counterterrorism discussion,

   
   

6. See The Resilient Homeland: How DHS Intelligence Should Empower America To Prepare for, Prevent, and Withstand Terror Attacks: Hearing Before the Subcomm. on Intelligence, Info. Sharing, and Terrorism Risk Assessment of the H. Comm. on Homeland Sec., 110th Cong. 9–17 (2008) (statement of Amos

   N. Guiora, Professor, S.J. Quinney College of Law, University of Utah) [hereinafter The Resilient Homeland].

7. See Right to Fair Trial, COUNTER-TERRORISM IMPLEMENTATION TASK FORCE, http://www.un.org/en/...