Posted by Paul Cassell:
Military Commissions and National Security Courts After Guantanamo
http://volokh.com/archives/archive_2008_11_09-2008_11_15.shtml#1226597213
My colleague Professor Amos Guiora has just written an interesting
essay about what to do with the Guantanamo detainees. Here is an
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.
You can find the full paper on SSRN [1]here. Sounds like an
interesting idea to me.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299740
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