Amos N. Guiora, the Quest for Individual Adjudication and Accountability: Are International Tribunals the Right Response to Terrorism?

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 24 No. 2

THE QUEST FOR INDIVIDUAL ADJUDICATION AND ACCOUNTABILITY: ARE INTERNATIONAL TRIBUNALS THE RIGHT RESPONSE TO TERRORISM?

Amos N. Guiora^*

Rule of law and morality in armed conflict are simultaneously essential and tenuous. The slippery slope of justice denied is but an arm's length away, making the failure to develop infrastructure to adjudicate individual accountability one of the most stunning "scarlet letters" of the past nine years. Although it is unclear who, in the context of this fundamental miscarriage of justice, should wear the scarlet letter "A," the nation-state may be the most appropriate and tempting wearer of the "rag of scarlet cloth."¹

Nine years after 9/11, gridlock best describes the failure to directly answer how and where-indeed, if at all-to bring to trial thousands of individuals detained worldwide. Although President Obama promised to close the prison at Guantanamo Bay²and issued an Executive Order to that end,³the detainees' future prospects have not improved since January 20, 2009.

Quite the opposite has occurred: detainees have endured additional years devoid of status and rights resolution-additional years of indefinite detention.⁴The purpose here is not to evoke sympathy for the detainee, but rather to unequivocally emphasize the human cost of this failure. In a previous paper,⁵I argue that the triangle of counterterrorism-detention, interrogation, and trial-is in a state of flux.⁶The result is the continued deprivation of basic civil and political rights to individuals whose status and rights have never been consistently defined.⁷

The question, then, is how to proceed. The intellectually conservative argument put forth by human rights advocates who support Article III trials even in the face of the apparent inability to actually conduct them for all the detainees⁸is, of course, delicious in its irony. By rigidly adhering to an argument predicated on inflexibility, they are proactively contributing to what purportedly most concerns them: violations of human rights. This intellectual rigidity is predicated on a fundamental misreading both of American history and of the Constitution of the United States, and has facilitated the extraordinary stalemate confronting thousands of detainees on a daily basis.⁹

A quick perusal of American history highlights that various judicial alternatives have been implemented in response to particular needs. Although admittedly not free of controversy, these alternatives have facilitated judicial resolution when traditional judicial forums were deemed inapplicable or inappropriate. President George W. Bush's Military Commission Order¹⁰was rightly criticized for its innumerable failings that reflected disdain for the rule of law; however, no other alternatives have been suggested that enable resolution predicated on constitutional protections and guarantees.¹¹Those who instinctively reject alternative proposals suggest, forcefully and articulately, that Article III courts are the most appropriate forum for determining individual accountability of post-9/11 detainees.¹²

This argument has merit but also suffers from serious flaws-in particular, the number of individuals not brought to trial dramatically outweighs the number of those appearing in court.¹³The Article III model is not the most efficient or appropriate model for determining individual accountability. If it were, then it is safe to assume the Obama Administration would have implemented this solution in order to demonstrate its allegiance to basic human and civil rights. Although the Administration's Khalid Sheik Mohammed blunder¹⁴reflects gross political incompetence, the fundamental issue extends far beyond one particular defendant.

There are at least four different possible solutions to this conundrum: Article III courts, military commissions, a national security court, and international treaty-based terror courts. Each has advantages and disadvantages, and each has powerful and articulate advocates. However, while decision makers, pundits, and academics weigh and discuss the intellectual, philosophical, and legal merits of each proposal, the truly affected-perhaps the only affected-await their day in court.

The Administration was clearly dealt a tough hand; the Military Commissions created by President Bush have been roundly denounced for violating basic detainee rights.¹⁵The fact that only three detainees obtained a verdict of any sort speaks volumes as to the fundamental failure of the system.¹⁶Although Congress,¹⁷the Supreme Court,¹⁸and other federal courts¹⁹ have addressed some of the Military Commission's flaws,²⁰the reality is simple: as these lines are written in 2010, we are no closer to establishing (much less actually implementing) a judicial system that will grant post-9/11 detainees that most basic of rights-their day in court. Whichever way the facts are spun, the reality is a damning indictment: with the exception of a limited number of individuals, the overwhelming majority of detainees are languishing in detention in what can only be termed prima facie indefinite detention.²¹

Proposed legislation suggests this may continue. The proposed Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010²²mandates that any person detained on suspicion of terrorist acts or material support for terrorism be placed in military custody.²³The detainee will not be entitled to Miranda rights and will remain in detention-and can be interrogated-while the Executive Branch makes a status determination.²⁴If determined to be an unprivileged enemy belligerent, the detainee will be held until the end of hostilities.²⁵Needless to say, unlike the prisoner of war ("POW") in the war paradigm, for detainees, end of hostilities in the terrorism paradigm is a euphemism for indefinite detention.

History suggests that previous out-of-the-box paradigms have been resolved, enabling adjudication of individual accountability.²⁶Morality and decency-let alone the rule of law-demand that thousands of post-9/11 detainees be afforded the same basic right to a day in court, just like non-state actors brought before war crime tribunals.

Once this fundamental, overarching decision is made-and articulated in public by President Obama-the Administration must implement a mechanism to grant detainees their basic right to trial. The key to this determination is executive decision-making combined with the political will and power to follow through. It is unconscionable that as the tenth anniversary of 9/11 approaches, this most basic of rights has not been convincingly, consistently, and compellingly resolved. There is no alternative but to return to the drawing board and establish clear guidelines on detention, interrogation, and judicial forum issues.

This Article analyzes the fundamental principles that should underlie our thinking about who and how we detain, and how to provide individuals their day in court. These principles include sovereignty, the duty of the state, constitutionality, due process, morality in armed conflict, and self-defense. The principles all demand individual adjudication; in concert, they all provide guidance for determining the appropriate mechanism. Part I addresses the possibility of international trials, and the role that sovereignty, international law, and the duty of the state play in determining appropriate mechanisms for individual adjudication. Part II explores the moral and constitutional implications of non-resolution of status. Part III highlights the intersection of operational counterterrorism and individual adjudication of detainee accountability, and examines the lessons that operational counterterrorism offers for the determination of detainee status. In sum, the principles at the heart of this analysis must form the foundation for developing a morally and legally appropriate mechanism to ensure proper and individualized resolution of detainee status and accountability.

I. SOVEREIGNTY AND THE DUTY OF THE STATE

At the most basic level, terrorism threatens the state and therefore directly implicates sovereignty. The nation-state has the right and the obligation to counter the threat and hold those committing such acts accountable.²⁷Although other circumstances also invoke the sovereignty of the state, such as war crimes and other atrocities, terrorism seems to trigger sovereignty in a more aggressive way.

National and international courts and tribunals have tried non-state actors for war crimes in both international and non-international armed conflicts in the past two decades.²⁸In the context of armed conflict, non-state actors include a variety of persons not affiliated with the armed forces of a state- insurgents, guerrillas, rebel groups, civilians directly participating in hostilities, and, indeed, terrorists.²⁹Multiple judicial forums, from the International Criminal Court ("ICC") to the Special Court for Sierra Leone to the U.S.

Second Circuit Court of Appeals, have reaffirmed that these non-state actors are bound by applicable law and can be held accountable for their crimes in accordance with due process of law.³⁰In judicial proceedings in such forums, the basic rights of these individuals to a fair trial, assistance of counsel, and due process have not been disputed, and many have been convicted³¹and imprisoned for their crimes.³²In light of this existing practice, the inability to find either existing or new judicial forums to try terrorists-one form of non- state actor-remains decidedly perplexing.

Many have called for international trials of terrorists, perhaps seeking to override a state-by-state method and synthesize an approach to terrorism trials.³³However, the internationalization of terrorism trials is a non-starter because nation-states are extraordinarily hesitant to waive sovereignty on an issue with powerful domestic overtones,³⁴and because the international community is unable to concur on a definition of terrorism.³⁵When the ICC was created, the...