Guantanamo and beyond: dangers of rigging the rules.

• Author: Foley, Brian J.

1. INTRODUCTION

   1. OVERVIEW

      Why are U.S. officials imprisoning and interrogating people about terrorism who are unlikely to know anything about terrorism? Why have U.S. officials created an entirely new justice system, which is now in effect at the prison for "enemy combatants" at the U.S. Naval Base at Guantanamo Bay, Cuba, rigged to perpetuate this practice? These questions are rhetorical, to point out what at bottom is occurring at Guantanamo. (1) This Article will show that this new justice system (2) does not work to reduce the risk of terrorist attacks, which is presumably the purpose of Guantanamo and the "War on Terrorism." Instead, it does just the opposite.

      Rigging the rules to make it easier for tribunals at Guantanamo to conclude that people are terrorists paradoxically makes it harder to investigate terrorism and capture terrorists. That is, rigging the rules in favor of the hunters actually helps the hunted avoid capture. The reason is straightforward: people commit terrorist acts. In order to prevent a terrorist attack, the people planning it must be identified and interdicted. A system that fails to identify these people fails to prevent terrorist attacks. (3)

      But what have gone unrecognized are the dangers that come from undisciplined information gathering, that is, from wrongly identifying people as terrorists ("false positives"). Fundamentally, identifying the wrong people can lead investigators away from the right people and make it more likely that any actual terrorists will be able to carry out their plans. (4)

      This Article directly challenges the effectiveness of the Guantanamo policy for thwarting terrorist attacks by challenging the general proposition that loosening judicial standards for detaining and convicting suspected terrorists helps prevent terrorism. Part II of the Article sets forth the necessary background showing how the rules at Guantanamo are rigged. I examine the rules of the Combatant Status Review Tribunal ("CSRT"), which purportedly provides a forum for prisoners to challenge the government's case that they are "enemy combatants" (a term that, for the purposes of this Article, I will use interchangeably with "terrorist" (5)), to show that the CSRT cannot be relied upon for accurate findings. Instead, it can be relied on only to ensure that anyone detained will remain detained. I also explain how the U.S. Supreme Court, in Hamdi v. Rumsfeld, (6) unfortunately helped lay the groundwork for the CSRT's rigged rules. I examine the rigged rules for the Administrative Review Board ("ARB"), which is set up to review annually a prisoner's dangerousness, and the rules for the military commissions, which the Bush Administration has created to make it easy to convict enemy combatants for particular war- and terrorism-crimes.

      Part III is the heart of the Article. I show how these rigged rules are dangerous because they negatively impact the accuracy of terrorism investigations. The CSRT and military commissions actually foster the gathering of false confessions and other false information from suspected prisoners, which can mislead investigators. Part of the problem is the aforementioned fact that coercive interrogation techniques are applied to prisoners who lack relevant knowledge of terrorism. There are other problems as well. A system designed to help the government win its cases can lead investigators to apply less rigor than they would need to win in a regular court system. Consequently, they learn less about the terrorist networks they must disrupt.

      Part IV proposes that new rules dedicated to reaching accurate determinations of terrorist status and individualized guilt for terrorist crimes be designed and implemented as a productive tool in the War on Terrorism. I make some suggestions for the form some of those rules should take.

   2. BACKGROUND: WRONG DEBATE, WRONG PREMISES--NATIONAL SECURITY AND CIVIL LIBERTIES ARE NOT DICHOTOMOUS

      The dangers I discuss were not exposed earlier because the debate about Guantanamo has been framed by the larger, venerable debate that sees the relationship between national security and civil liberties as dichotomous. Indeed, the U.S. Supreme Court in Hamdi consciously tipped this scale in a way it assumed would favor national security. (7)

      One way of describing the logic of Guantanamo is that it reverses the longstanding view that it is better to let ninety-nine guilty men go free than it is to convict one innocent man. (8) The new thinking is to "play it safe" by casting a wide net that might, regrettably, ensnare innocent people along with legitimate terrorists. The CSRT helps ensure, however, that all of the people will remain ensnared. In this new thinking, false negatives are far more dangerous than false positives, and there is really no cost for imprisoning a false positive other than that borne by the prisoner. (9) This sentiment was expressed recently by Representative Dan Rohrabacher (RCA) during a Congressional hearing into another aspect of the U.S. detention policy, "extraordinary rendition," which entails kidnapping suspects and rendering them to foreign countries and secret prisons for the purpose of coercive interrogation: "[I]f 10 ... people suffer ... in order for us to take 90 other people off the street who are intent and involved in plans that would slaughter tens of thousands of our citizens, I'm afraid that's the price we pay in a real world." (10)

      The dichotomous framing of civil liberties and national security is, I believe, why the main questions about Guantanamo until now have concerned the legality of the detentions, (11) the legality of the CSRT, (12) the legality of the military commissions, (13) and the legality and morality of torture and coercive interrogation. (14) This frame is why the dominant critiques have focused on how the policy discounts civil liberties--these critiques argue that the policy is illegal, unfair, immoral, and fails to reflect "American values" (15) by punishing innocent people and denying them any say in the matter. To a lesser extent, critiques have been based on national security considerations, suggesting that what appears to be American hypocrisy regarding justice and human rights may create a disincentive for other countries to assist the United States as the leader in the "War on Terrorism," (16) that the unfair policy can motivate enemies and be used as anti-U.S, propaganda, (17) and that other countries might use the policy to justify treating any captured U.S. soldiers similarly. (18)

      But the effectiveness of the new justice system in preventing terrorist attacks has not been challenged outright. The dichotomous framing prevents such a challenge because it elides national security justifications with effectiveness. (19) (This elision is promoted by official secrecy, which makes it hard to question the effectiveness of government actions taken in the name of national security.) Indeed, a person approaching this subject for the first time might conclude either that many critics have tacitly accepted that the new system is actually effective but distasteful or that the fact that the system is ineffective is a point so obvious that it need not be made. The former is probably the more likely conclusion because ineffectiveness is the most powerful way to criticize a policy and can cut through ideological intransigence and political posturing.

      In any event, the view that there is a tension between national security and civil liberties cannot withstand scrutiny, at least at Guantanamo. This view is underwritten by a set of incorrect assumptions that have not been fully articulated, beginning with the assumption that limiting civil rights can increase security by giving the government more power in what is seen as a zero-sum game. That is why the purported benefit of this new justice system is that it gives officials broad discretion and flexibility to deal with terrorism. (20) But going deeper, the assumptions are: that the Executive well knows who is and who is not a terrorist; that judicial participation would only impede the Executive in its efforts to neutralize these enemies by tying officials in bureaucratic (judicial) red tape; and that judicial interference, with its attention to procedural and evidentiary rules designed to protect defendants' rights, would risk erroneously exonerating people whom the Executive has identified as planning terrorist attacks. Such thinking is what underlies shibboleths such as "the Constitution is not a suicide pact." (21)

      The Executive, however, is not all-knowing and never has been. Mistakes in identifying people as terrorists have been made in the "War on Terrorism," and at Guantanamo in particular. (22) Normal judicial procedures can help prevent such mistakes. The process at Guantanamo is meant to make it practically impossible for anyone caught in the net, by mistake or not, to get out. The need for the accuracy that courts contribute should, however, be recognized as more compelling when it comes to preventing terrorism than when it comes to convicting and punishing people for crimes that have already taken place. The danger of identifying the wrong people is greater when hundreds if not thousands of lives are at risk from terrorism, as I will show.

   3. BACKGROUND: TWO ASSUMPTIONS; AND A BRACKETED QUESTION

      In this Article I make two assumptions. The first is that this new justice system goes "beyond Guantanamo" as my title indicates. (23) That is, even if Guantanamo is ultimately shut down, as two pending Senate bills propose, there is no indication that such a detention policy and associated tribunals with rigged rules will not merely be implemented elsewhere. (24) Indeed, the two bills, as written, would keep the system alive in whole or in part. Moreover, it seems that demands for courts to allow easy victories against suspected terrorists may be part of a more general reaction to terrorist attacks, at least in democratic...