Professor of Law, University of California, Davis, School of Law (Martin Luther King, Jr. Hall). With thanks to Phillip Carter, Eugene R. Fidell, Elizabeth Lutes Hillman, and Jordan J. Paust for comments; and to Roger Nelson for research assistance. A version of this article was presented in September 2006 as the U.S. national report at a colloquium, sponsored by Unité Mixte de Recherche de droit comparé de Paris, that compared military and special tribunals in more than a dozen countries; that report, La Justice militaire et les Juridictions d'exception aux États-Unis, will appear in TRIBUNAUX MILITAIRES, JURIDICTIONS D'EXCEPTION: PERSPECTIVES COMPARÉES ET INTERNATIONALES (Elisabeth Lambert Abdelgawad ed., forthcoming 2007). This Article also was presented in October 2006 at a conference cosponsored by the Los Angeles-Terrorism Early Warning Network and the RAND Corp.; in February 2007 at International Law Weekend-West and a symposium at the University of California, Los Angeles, School of Law; and in March 2007 at a lecture given on the occasion of receiving a Doctor honoris causa degree from Universiteit Utrecht, the Netherlands. The Article is current through mid-April 2007.
U.S. officials have campaigned since late 2001 for antiterrorism measures novel to the United States; specifically, for the indefinite and incommunicado detention of presumed terrorists, a handful of whom might one day stand trial before tribunals fashioned to avoid acquittal. The campaign to uproot U.S. legal tradition was fronted for years by the Executive.1 The Supreme Court, though it placed significant checks on the executive plan, nonetheless gave sanction to some aspects;2the campaign won further endorsement when Congress passed the Military Commissions Act of 2006.3 There has, of course, been opposition. Criticism of the curtailment of liberties came from a host of human rights and legal organizations, from judges, legislators, and others, within and outside America. But the press of the campaign often pushed critics solely to react, to explain why an isolated initiative was wrong rather than to put forward a full picture of previous practice and present options. This Article endeavors to paint more of that picture. In so doing,Page 875 it demonstrates that reinforcement of an established, two-pronged policy-called here, with a nod to Foucault, "punish or surveil"4-is the present option that promises best to protect both individual rights and national security.
The Article begins by describing previous practice and evaluating in light of earlier practice the campaign launched after September 11, 2001. It focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were the government's only option. When it deemed judicial mechanisms unable to protect state security-on account, for example, of its unwillingness to disclose secrets of state-the Executive resorted to surveillance, the second prong of established policy. Americans were led to understand that U.S. intelligence agents ever were engaged in keeping their eyes open for inchoate threats, gathering information as threats took shape, and, at times, acting in secret against those threats.
As for present options, the Article finds implicit in executive innovations an assertion that the September 11 attacks proved the two-pronged policy inadequate. A new need thus is said to require blurring the line between punishment and surveillance. Though new for the United States, such blurring has been a hallmark of others' antiterrorism measures, among them the Diplock system employed by Britain during its Troubles in Ireland. By such measures detention no longer is a way to secure presence for trial or absence from battle until war ends, but rather a way to assure custodial interrogation unfettered by the niceties of legal process. Legal process itself is diluted: in the case of the United States, newly minted military commissions may convict detainees based on statements elicited not by law enforcement agents schooled in Miranda,5 but by intelligence officers less encumbered by constraintsPage 876 against coercion.
This Article takes issue with the premise that the attacks of September 11 exposed elemental defects. It contends, rather, that the existing two-pronged system worked, accommodating interests to protect both human and state security. Perceived difficulties in cases like that of erstwhile enemy combatant José Padilla reveal improper use of established policy, not a need for wholesale disestablishment of that policy. The government's third-prong option, moreover, does not improve on the established regime. The Executive itself admits that few of the 700 persons who have suffered detention at Guantánamo posed a grave threat to national security. Yet the very existence of the camp gravely harms the global standing of the United States. The five-year-old plan for military commissions has not yielded the conviction after trial of even one person; its sole, dubious achievement has been to strip the mantle of legitimacy from the government's preferred means of punishment. Also of concern is the injury done to intelligence activities. By opening the courtroom door to cross-examination of once-covert techniques, and by pushing openly for wider surveillance even within U.S. borders, the Executive well may have shrunk the scope within which intelligence agents operate. This consequence likewise leaves the United States less secure than it was under the established punish-or-surveil regime.
Obscured in debates surrounding post-September 11 innovations is the antiterrorism framework in place before that date. According to that framework, persons against whom the government had sufficient, publishable evidence were punished following conviction at trials that satisfied due process. Punishment occurred even for offenses that implicated national security-offenses classified in some instances as contrary to the laws of war, in others, simply, as contrary to the laws of the United States. Laws were applied to combatants and civilians, to Americans and non-Americans. A principal means of recourse was the civilian system of criminal justice. The other was U.S. military justice, which comprehended courts-martial and, on occasion, military commissions. All these mechanisms operated within constitutional constraints respecting jurisdiction and process. But the plan put in motion after September 11 departed from this framework, opting for a novel system of detention and military commissions that stood at odds with accepted fairness standards.Page 877
The Constitution apportions responsibilities for U.S. armed forces, for the conduct of war, and for the punishment of certain crimes among the legislative, executive, and judicial branches of government. Article I grants to the Congress the power to, inter alia: "define and punish Piracies and Felonies committed on the High Seas, and Offenses against the Law of Nations";6 "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water";7 "raise and support Armies";8 "provide and maintain a Navy";9 "make Rules for the Government and Regulation of the land and naval Forces";10 "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions";11 and "provide for organizing, arming, and disciplining, the Militia."12 In turn, Article II sets forth the powers and duties of the head of the executive branch: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States";13 shall have the "Power, by and with the Advice and Consent of the Senate, to make Treaties";14 and shall "take Care that the Laws be faithfully executed."15 Finally, Article III grants jurisdiction to review disputes "arising under this Constitution, the Laws of the United States, and Treaties,"16 "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."17
The Constitution further authorizes recourse to habeas corpus, a centuries-old writ "throwing its root," as the Supreme Court has written, "deep into the genius of our common law."18 With regard to this process by which the courts are obligated to examine the lawfulness of executive detention, the Constitution provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."19 By the broader doctrine of judicial review, moreover, federal courts may invalidate any governmental action that violates the Constitution.20 This network of rights and duties has governed the scope of jurisdiction of each of the punishment mechanisms under review.
In their struggle for independence from the British Crown and in subsequent armed conflicts, Americans have subscribed to the laws...