Tara Ramanathan, Introduction

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

INTRODUCTION

Tara Ramanathan^*

The keynote address of this Symposium, delivered by Professor Amos Guiora, underscored a single statistic at the heart of perhaps the most daunting issue in the field of international humanitarian law today: 25,000 people detained in military bases around the world currently await trial for crimes involving terrorism.¹As the number of detainees held on terrorism charges grows, so does the pressure on governments to develop and execute plans to efficiently prosecute them. The Emory International Law Review and the Center for International and Comparative Law at Emory University School of Law hosted nine prominent scholars and practitioners of international law in early 2010 to debate the questions of who should prosecute such an overwhelming number of people, where their cases can be heard, and what standards must be used to try them. This issue presents the articles authored by these academics and practitioners, and offers prescient analyses of the opportunities available to governments to prosecute those detained for crimes involving terrorism.

Many different perspectives are presented by Professors Guiora, Michael Kelly, Rainer Nickel, Randall Peerenboom, Charles Shanor, and Johan van der Vyver, the Honorable Evan Wallach, and attorneys Laura Olson and Sandra Hodgkinson, though there are also many commonalities among their views. Their articles emphasize, above all, the urgency of creating standards, definitions, and procedures in rule-of-law countries to address the predicament posed by the number of detainees. To this end, the Symposium issue presents their accounts of the effects of international pressure on legal systems and legal procedure; the precedents created in history as templates for future decision- making; and the tension between individual rights and governmental interest in security.

I. HISTORY OF DETENTION IN INTERNATIONAL AND DOMESTIC LAW

In understanding the principles governing detention and subsequent prosecution explored in these articles, international humanitarian law provides an important foundation. Normative standards for detaining persons during war, even one against as amorphous a concept as terror,²have long existed under United Nations instruments, particularly the Geneva Conventions of

1949.³Common Article 3 to the Conventions defines the parameters of treatment of detainees, prohibiting violence, humiliating and degrading treatment, and sentences passed "without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."⁴The Third Convention proscribes inhumane acts upon prisoners of war "until such time as their status has been determined by a competent tribunal" and the Fourth Convention imposes the same requirement for acts upon civilians captured during armed conflict, along with "rights of fair and regular trial."⁵According to the standards in Additional Protocol I of 1977 for lawful and unlawful combatants, the Geneva Conventions would apply to the majority of detainees captured since September 11, 2001.⁶

Holding over 28,000 suspects at the height of the Iraqi insurgency in 2006,⁷the United States faces intense international scrutiny over its decisions regarding terrorism detainees. Accordingly, the articles in this issue analyze the history of U.S. detainment of persons captured during the "War on Terror," beginning with the 2001 military order from President George W. Bush denying the applicability of the Geneva Conventions to detainees under U.S. authority.⁸That executive order led to infamous political clashes over identifying inhumane treatment of prisoners⁹and the use of military commissions with more lenient standards for prosecution.¹⁰

At the time, critics of military commissions railed against the absence of juries that would ensure accountability and procedures that would rely on precedent, citing violations of separation of powers and human rights promised under federal and treaty law.¹¹Department of Defense regulations expanded the rights of detainees to be informed of the charges against them, gather evidence for use in their cases, and retain military defense or civilian counsel.¹²

However, the regulations provided that military commission rulings would only constitute recommendations to the Secretary of Defense and the President, rather than final rulings.¹³The executive branch also continued to detain prisoners, some even after acquittal and others effectively without the option to appeal.¹⁴At the same time, reports uncovered new forms of imprisonment, including detainment in prisons run by the Central Intelligence Agency around the world for an enormous number of people far removed from the judicial process.¹⁵

U.S. authorities continued to struggle to find appropriate fora for detainees to face trial even after the Supreme Court handed down Hamdi v. Rumsfeld¹⁶and Rasul v. Bush¹⁷in 2004 to bring "enemy combatants" and their habeas corpus petitions squarely within the jurisdiction of domestic federal courts.¹⁸

Congress enacted the Detainee Treatment Act of 2005¹⁹to limit the federal habeas review, but the Act was challenged successfully on behalf of prior petitioners in Hamdan v. Rumsfeld.²⁰The Court held that military commissions did not comply with the law of war or Common Article 3 of the Geneva Conventions²¹and a plurality of justices recognized that acts triable under the law of war must be...