Since President Barack Obama issued an Executive Order in January requiring the closure of the Guantanamo Bay Detention Center within a year, the debate about what to do with the detainees has been marked by much heat but little light. All that is about to change with the publication of the Report of a distinguished group of experts and associated articles appearing in the Winter 2009 issue of the Case Western Reserve Journal of International Law.

The 57-page report and associated articles were the product of a meeting with two-dozen high-level government and international organization officials, key officers of Non Governmental Organizations, and leading academicians, which was convened at Case Western Reserve University School of Law by the International Committee of the Red Cross and CWRU’s Frederick K. Cox International Law Center a year ago.

According to the Report, shutting down Guantanamo is a start, but it will not be a comprehensive solution to the question of security detention (detention without charges of persons deemed a threat to national security) for the United States and other countries. It is likely that security detention will continue to be utilized, though to a lesser extent and in different venues, by the new administration. Meanwhile, following the lead of the Bush administration, countries around the world continue to experiment with various security detention regimes.

The Report and the associated articles indicate that international standards need to be clarified, adopted, and implemented to ensure that detainees are afforded prompt legal process and a meaningful opportunity to challenge the facts giving rise to their detention before a neutral arbiter. Moreover, extended security detention should be considered legitimate only where there is evidence that the detainee himself poses a serious security threat, an issue that must be subject to periodic review; and the longer the detention the higher must be the evidentiary burden of the State.

The Report and articles are available for worldwide viewing on the Case Western Reserve Journal of International Law’s website http://www.case.edu/orgs/jil/

On December 4, 2008, Salem Chalibi and I led a discussion (moderated by Elizabeth Wilmshurst) at Chatham House in London about the post-Dujail trials before the Iraqi High Tribunal.  There have been five trials in all, three of which have concluded.   After Saddam’s execution, the international media stopped covering the trials, so that few people are aware that without Saddam as a defendant, the subsequent trials were conducted much more efficiently, without the chaos and theatrics that marked the earlier proceedings.  Nor have there been any more assassinations of trial participants or allegations of government attempts to remove judges or otherwise influence the proceedings.  Meanwhile, the subsequent trials have established some important precedents, in particular regarding application of the crime of genocide.   For the detailed summary of the Chatham House discussion of the subsequent trials, click on:  http://www.chathamhouse.org.uk/publications/papers/view/-/id/692/ .

View my op-ed published on JURIST Forum,  Legal Aspects of ‘Operation Cast Lead’ in Gaza, where I argue that while self-defense (in the classic model) is the legal basis for Israel’s “Operation Cast Lead” against Hamas, the Israel Defense Forces’ re-articulation of proportionality and collateral damage in that context is a new development in international law that carries significant risks.

Cross-posted on National Security Advisors.

The following article is posted from the JURIST-Forum, “A National Security Court: Restoring the Balance Between Security and Justice.”

Although I very much enjoyed reading Professor Leila Nadya Sadat’s recent JURIST Forum op-ed Restoring America’s Rights Record, I respectfully disagree with her observations regarding an alternative legal system to try terror suspects. In particular, I was struck by her characterization of such proposals as ‘rights denial’. With respect to my own proposal nothing could be further from the truth. Quite the opposite - my proposal is predicated on a rights-based solution to a problem requiring an immediate, legal answer. Rights denial? Absolutely not. Rights ensuring? Yes. Absolute rights? No. Workable, practical and legal solution to an enormous legal and practical conundrum? Absolutely.

Let me explain.

In advocating the establishment of domestic terror courts I am seeking both a legal and practical solution to the continued detention of thousands of “post 9/11 detainees”. My over-riding concern is for the rule of law and rights of detainees otherwise held, in essence, in indefinite detention. That has been the primary motivation for my proposal.

When I testified before the Senate Judiciary Committee (June, 2004) regarding my proposal I suggested that establishing a domestic terror court is the most effective way to begin trying thousands of detainees held by the United States directly or indirectly world-wide. I suggest that the term “GITMO” is misleading. Guantanamo Bay is but one detention facility; what about the detainees held in Abu Ghraib, Bagram and Camp Buco? What about detainees held elsewhere in the world either by or on behalf of the US? What about future detainees?

In other words, GITMO must be viewed as a term of art referring to thousands of detainees with an unknown number potentially held in the future. While I suggest there is no “war on terrorism” (an unfortunate and inaccurate term), active and engaged operational counter-terrorism (what has been referred to as “armed conflict short of war”) will directly lead to the continued detention of thousands of individuals. That is the reality of terrorism and counterterrorism. My proposal is in response to that continued and perhaps never-ending reality.

In developing a “rights-based” alternative legal regime I recommend that “where” individuals suspected of involvement in terrorism be tried is but one piece of the puzzle. That puzzle is comprised of three legs: how and when to detainee, how to interrogate and how and where to try. Looking forward: With respect to detention-an individual can be detained only if he is “caught in the act” or if there is reliable, valid and valid intelligence information with respect to his involvement in terrorism. “Round up the usual suspect” and guilt by the association are unconstitutional. They are also enormously problematic from an operational perspective. With respect to interrogations, according to my proposal individuals detained for suspicion of involvement in terrorism will be granted Miranda rights. They will also not be subject to torture no matter what offense they are suspected of. Torture is illegal, immoral and does not lead to actionable intelligence.

As to where to try the detainees. I suggest that the military commissions are an unworkable solution. Similarly, a suggested international treaty based terror court is presently unfeasible given a fundamental disagreement by the international community to agree on a definition of terrorism. That leaves two solutions-Article III courts and domestic terror courts.

The fundamental differences between Article III courts and my proposed domestic terror court is with respect to the introduction of classified intelligence information in camera and bench, rather than jury, trials. With respect to the former, the defendant’s 8th Amendment right to confront his accuser will be balanced with the State’s absolute requirement to protect intelligence sources. Is this problematic? It most certainly is; of that, there is no doubt. However, it is critical to emphasize that this exception will only be implemented in those cases where the available criminal evidence is insufficient for conviction. In other words, if the prosecutor is convinced that conviction does not require intelligence information the case will be solely based on criminal evidence therefore preserving the defendant’s right to confront. However, in those cases where the criminal evidence is insufficient the domestic terror court paradigm will enable introduction of classified information.

The judge, in such occurrences, will “wear” two hats-that of judge and that of defense counsel. Furthermore, the judge will proactively seek to de-classify otherwise classified information thereby enabling the defendant to cross examine his accuser. While this will not be possible in all cases, the judges “mandate” is to minimize those cases where classified information is introduced. While this is not a “perfect solution” it seeks to balance between two powerful competing interests by suggesting a workable solution.

With respect to bench, rather than jury trials I suggest that convening thousands of American citizens to sit as a “jury of peers” of suspected terrorists and expecting them to understand enormously complicated intelligence information and not be fearful of “jury intimidation” is an all but impractical solution. Not only logistically (in the words of the former President of the Israel Supreme Court, Aharon Barak, “the logistic considerations of the executive must not serve as a barrier to the freedom of the individual”) but legally from the perspective of protecting the detainee-defendants rights. Bench trials-in my proposal by a re-structured FISA Court-with appeal to the US Court of Appeals would far more effectively preserve and protect the rights of the detainee than jury trials. Trial by jury of thousands of detainees will undoubtedly be inordinately slower than bench trials thereby continuing to deny the defendant basic judicial rights.

That will be the true and continuing “rights denial” Prof Sadat suggests in her commentary.

I do agree with Prof Sadat that a discussion on this topic must be held and quickly so for the existing paradigm is unworkable. The debate regarding this question must be robust and candid. It must include policy and decision makers, academics, members of the Bar, civil rights organizations and the public. The over-riding principle is respect for the rule of law with an understanding that balancing between the legitimate rights of the individual with the equally legitimate national security rights of the state is the essence of a democracy.

Cross posted on National Security Advisors

View my essay, Military Commissions and National Security Courts after Guantanamo, Northwestern Law Review, Colloquy, 2008, written in response to Gregory S. McNeal’s article, Beyond Guantanamo, Obstacles and Options.

Abstract:

In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States.  While various terms have been used to label detainees including “enemy combatant,” “illegal belligerent,” and “enemy belligerent,” all fail to define the rights such individuals should be granted.  Admittedly, this process has been made more difficult by a continued inability–perhaps unwillingness– to define the conflict in a consistent manner.  Is this a war? Is this a “war on terror”? Is this police action?  Considering this definitional uncertainty, the critical question becomes where to appropriately try these detainees–how to try these individuals while protecting classified intelligence and also maintaining individual rights.

In this essay, I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather they are a “hybrid” of both.  To that end, I recommend that the appropriate term for post 9/11 detainees is “individuals suspected of involvement in terrorism.”  This definition adopts aspects of both the prisoner of war and criminal law paradigms, thereby creating what I have called a “hybrid paradigm.”  The hybrid paradigm seeks to balance–or maximize–the legitimate rights of the individual with the equally legitimate national security rights of the state.  Furthermore, it seeks to move beyond the amorphousness that has defined much of the debate over the last seven years.

To try these individuals, I suggest a hybrid “domestic terror court” that would allow for an in camera review of confidential intelligence information presented by the prosecutor and a representative of the intelligence services.  A properly constituted domestic terror court–comprised of judges schooled in understanding intelligence reports and intelligence gathering procedures, and aware of the necessity of preserving constitutional rights–is the proper starting point in moving forward with post 9/11 terrorist prosecutions.  The proposed hybrid paradigm will ensure both the state’s obligations to keep intelligence and matters of national security confidential as well as the defendant’s right to a fair trial.

Cross-posted in National Security Advisors.