The expressive value of prosecuting and punishing terrorists: Hamdan, the Geneva conventions, and international criminal law

George Washington Law Review

Volumn 75, Issue 5-6, 2007, Pages 1165-1199

  Drumbl, Mark A ^a,b  

^a Department of Law ^*

^b WASHINGTON AND LEE UNIVERSITY   (United States)

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EID: 36048945031     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (152)

1. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2798 (2006).
2. Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Common Article 3].
3. Hamdan, 126 S. Ct. at 2796.
4. Id. at 2798.
5. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in scattered sections of 10, 18, 28, and 42 U.S.C).
6. Id. sec. 3(a)(1), §§948b to 948d, 120 Stat, at 2602-03.
7. Id. sec. 3(a)(1), §950v, 120 Stat, at 2625-30.
8. War Crimes Act of 1996. Pub. L. No. 104-192, 110 Stat. 2104 (to be codified as amended at 18 U.S.C. §2441).
9. MCA, sec. 6, 120 Stat, at 2632-35.
10. Id. sec. 6(b) (amending the War Crimes Act to enumerate acts that constitute prosecutable grave breaches of Common Article 3: torture and cruel or inhuman treatment, performing biological experiments, murder, mutilation, maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages). The President can delineate permissible interrogation methods that fall short of grave breaches as defined by the MCA, or proscribe impermissible methods that fall short of grave breaches and establish violations therefore. Id. sec. 6(a)(3). Insofar as the grave breach definitions under the MCA are narrower than internationally accepted definitions of grave breaches, see infra note 19, this gives the President leeway to potentially "authorize aggressive interrogation methods that might otherwise be seen as illegal by international courts."
11. Nedra Pickler, Tough New U.S. Terror Bill Signed into Law, GLOBE & MAIL (Toronto), Oct. 17, 2006, http://www.theglobeandmail.com/servlet/story/RTGAM.20061017.wusterr1017/BNStory/ International/home. Moreover, "the standard on interrogation treatment [is] retroactive to 1997, so CIA and military personnel could not be prosecuted for past treatment under standards the administration considers vague."
12. Kate Zernike, Top Republicans Reach an Accord on Detainee Bill, N.Y. TIMES, Sept. 22, 2006, at A1.
13. As a whole. Common Article 3(1) provides: Persons taking no active part in the hostilities, including ... those placed hors de combat by ... detention ... shall in all circumstances be treated humanely without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Common Article 3, supra note 2, sec. (1).
14. In February 2007, a divided bench of the U.S. Court of Appeals for the District of Columbia ruled that pursuant to the enactment of the MCA, foreign nationals detained at Guantanamo do not have the right to challenge their indefinite detention through the writ of habeas corpus in the U.S. court system. Boumediene v. Bush, 476 F.3d 981, 994 (D.C. Cir. 2007), cert. denied, 127 S. Ct. 1478, 1478-80 (2007);
15. see also Josh White, Guantanamo Detainees Lose Appeal; Habeas Corpus Case May Go to High Court, WASH. POST, Feb. 21, 2007, at A1.
16. The court of appeals upheld the habeas corpus stripping provision of the MCA. Boumediene, 476 F.3d at 987, 994. The Supreme Court subsequently declined to grant certiorari. Boumediene v. Bush, 127 S. Ct. 1478, 1478-81 (2007). Although three Justices would have granted certiorari, id. at 1479-81 (Breyer, J., dissenting from denial of certiorari), two others declined on a procedural basis, id. at 1478 (statement of Stevens and Kennedy, JJ.). Thus, the question may well reappear before the Supreme Court on appeal from a conviction formally entered by a military commission. Legislation has been introduced in the U.S. Senate that would restore habeas corpus rights to all detainees in U.S. custody. Restoring the Constitution Act of 2007, S. 576, 110th Cong. (2007).
17. See MCA, sec. 7(a), 120 Stat. at 2635-36 ("No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.");
18. supra note 12. My concerns in this Article do not relate to the constitutionality of the MCA, nor whether the habeas-stripping provision represents an improper encroachment into the inherent powers of the judicial branch. (Note that Rasul v. Bush, 542 U.S. 466, 473-74 (2004), only addressed statutory rights of habeas corpus for Guantanamo detainees.) Nor do my concerns in this Article relate to how the MCA may affect all aliens currently in the United States, including lawful permanent residents, by creating a subaltern justice system.
19. See, e.g., Matt Apuzzo, U.S.: Immigrants May Be Held Indefinitely, WASH. POST, NOV. 14, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/11/14/AR2006111400125. html (reporting on Bush Administration documents filed with the Court of Appeals for the Fourth Circuit and contending that "[i]mmigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts" insofar as the MCA applies to foreigners, even lawful immigrants and nonimmigrants, arrested in the United States);
20. Former Justice Officials Oppose Terror Policy, INT'L HERALD TRIB. (Paris), Nov. 22, 2006, http://www.iht.com/ articles/2006/11/22/news/notes.php (reporting court filings in response to the Administration position). MCA section 7(a)-(b) also eliminates jurisdiction, other than that provided in the Detainee Treatment Act of 2005 ("DTA"), Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 2739-44 (to be codified in scattered sections of 10, 28, and 42 U.S.C), for any claim against the United States or any of its agents related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien enemy combatant, with retroactive application to September 11, 2001. MCA, sec. 7(a)-(b);
21. see also Id. sec. 6(b)(2) (making definitions of grave breaches retroactive to November 26, 1997).
22. Four of the five Justices who comprised the majority of the Court in Hamdan agreed that "[n]othing prevents the President from returning to Congress to seek the authority he believes necessary." Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2799 (2006) (Breyer, J., concurring) (joined by Justices Kennedy, Souter, and Ginsburg). This agreement portends that the MCA may well receive some deference in any subsequent judicial process regarding the legality of the military commissions it establishes.
23. See id. at 2809 (Kennedy, J., concurring).
24. See Derek Jinks, The Applicability of the Geneva Conventions to the "Global War on Terrorism," 46 VA. J. INT'L L. 170, 193-95 (2005).
25. MCA, sec. 3(a)(1), §948b(g), 120 Stat, at 2602 (providing that "[n]o alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights."); id. sec. 5(a), 120 Stat, at 2631 ("No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.").
26. Id. sec. 3(a)(1), §948b(f), 120 Stat, at 2602.
27. Common Article 3, supra note 2, sec. (1)(c); see supra note 11. The MCA bars certain interrogation practices (which it defines as "grave breaches" of Common Article 3).
28. See supra note 10. The MCA's understanding of "grave breaches," Lowever, is narrower than those "grave breaches" prosecuted by the International Criminal Tribunal for the former Yugoslavia ("ICTY"), the International Criminal Tribunal for Rwanda ("ICTR"), and the subject matter jurisdiction of the International Criminal Court ("ICC").
29. See Statute of the ICTY art. 2, May 25, 1993, 32 I.L.M. 1163; Statute of the ICTR art. 4, Nov. 8, 1994, 33 I.L.M. 1602; Rome Statute of the ICC art. 8, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. Accordingly, the MCA listing is more of a subclass of generally recognized grave breaches than a mirror image thereof. Furthermore, some of the definitions of the crimes, such as torture, involve a specific intent requirement that may depart from international definitions. The MCA renders évidence obtained through torture inadmissible, but permits evidence obtained where the "degree of coercion is disputed" to be admissible if such evidence is reliable, in the interests of justice, and, if obtained after passage of the DTA, through methods that do not amount to cruel, inhuman, or degrading treatment as defined in that Act. MCA, sec. 3(a)(1), §948r, 120 Stat, at 2607. This means that hearsay evidence obtained during an abusive interrogation could well be admissible.
30. MCA, sec. 6(a)(2), 120 Stat, at 2632. Customary international law, therefore, no longer appears to be available as an interpretive tool in the United States when it comes to interpreting provisions of the domestic War Crimes Act enacted to implement the Geneva Conventions. Ironically, this means that the Nuremberg principles of which the United States was a key architect cannot form part of the architecture of U.S. law that contours the conduct of U.S. officials or agents who detain and interrogate those suspected of terrorist acts against U.S. targets.
31. MARK A. DRUMBL, ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW (2007) (exploring penological rationales and goals in cases of crimes against humanity, genocide, and discrimination-based war crimes, with specific reference to Rwanda, the former Yugoslavia, East Timor, and World War II atrocities, including the Holocaust).
32. Postdating this symposium, on March 26, 2007, Australian David Hicks became the first detainee to plead guilty before a military commission. Josh White, Australian's Guilty Plea Is First at Guantanamo, WASH. POST, Mar. 27, 2007, at Al. He pled guilty to one charge of material support for terrorism. Id. Subsequently, he was sentenced to nine months of imprisonment (he has already spent five years at Guantanamo).
33. Josh White, Australian to Return Home to Serve Shortened Sentence, WASH. POST, Mar. 31, 2007, at A12. He apparently will serve the sentence in Australia. Id. He agreed to a statement that he had never been "illegally treated" while a captive, as well as a promise not to file any lawsuit regarding the conditions of his detention at Guantanamo. Id. This guilty plea and conviction fall well short of meaningful expressive value and corroborate the concerns I set out in this Article regarding the military commissions and what can be done to enhance their effect.
34. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2779 (2006) (plurality opinion).
35. Id. at 2839 (Thomas, J., dissenting).
36. Id. at 2809 (Kennedy, J., concurring).
37. Id. at 2775-77 (plurality opinion).
38. Ex parte Quirin, 317 U.S. 1 (1942).
39. Hamdan, 126 S. Ct. at 2776-77 (plurality opinion).
40. Id. at 2780.
41. Id. at 2784 (referring to the Geneva Conventions and the Hague Conventions).
42. Id.
43. Id. at 2785 n.40;
44. see also Mark Drumbl, Prosecutor v. Radislav Krstic: ICTY Authenticates Genocide at Srebrenica and Convicts for Aiding and Abetting, 5 MELB. J. INT'L L. 434, 446 (2004) (discussing joint criminal enterprise and collective liability theories).
45. Hamdan, 126 S. Ct. at 2830-31 (Thomas, J., dissenting).
46. Id. at 2831;
47. see also id. at 2833 (citing to the Nuremberg Military Tribunals as precedent).
48. Id. at 2824;
49. see also id. at 2825 (criticizing the plurality's willingness to "second-guess[]" the executive's judgment).
50. Id. at 2830.
51. Id. at 2830 n.6.
52. MCA, Pub. L. No. 109-366, sec. 6(a)(2), 120 Stat. 2600, 2632 (2006).
53. Hamdan, 126 S. Ct. at 2831 n.7 (Thomas, J., dissenting).
54. Id. at 2783 (plurality opinion). Justice Stevens also distinguished other Civil War examples Justice Thomas brought forward, such as the indictment against Robert Louden. Id. at 2784 n.37. Furthermore, Justice Stevens was persuaded by the fact that he saw no need for urgency to impose judgment on Hamdan. Id. at 2785.
55. Id. at 2834 (Thomas, J., dissenting).
56. Id. at 2837 n.14.
57. in recent Rwandan case law, association des malfaiteurs has been charged in domestic genocide prosecutions. An example of individual criminal responsibility for association de malfaiteurs involves a conviction for a perpetrator who was present and exercised some supervisory functions at a roadblock in Rwanda where criminal attacks allegedly occurred and who was unable to prove that his presence was coerced. Ministère Public v. Twizeyimana, Tribunal de première instance [T.P.I.] [ordinary court of original jurisdiction] Kigali, June 20, 2000, RMP 8020/S12/RE/MAITRE, RP 060/CS/KIG, at 10. Independent of the distinctions between genocide and war crimes, this conviction involves a level of presence in the actual attack that is not readily apparent from what is known of the charges against Hamdan. In Rwanda, to convict for genocide based on association de malfaiteurs, the prosecutor must show that the group was created for eliminationist purposes. Id. at 2. A group that arose spontaneously without a common intention (attroupement spontané sans organisation et sans intention commune)-including a group, in which some members wanted to kill and others did not, that assembled out of curiosity to observe what was occurring after hearing a clamor-does not meet this standard. Ministère Public v. Sendakiza, Tribunal de première instance [T.P.I.] [ordinary court of original jurisdiction] Rushashi, Nov. 11, 1999, RMP 110.498/S1/NK.A/NT.M/N.G., RP 032/S1/99/CH.SP/Rshi, at 1.
58. See Statute of the ICTY, supra note 19, art. 4; Statute of the ICTR, supra note 19, art. 2.
59. Mark A. Drumbl, Judging the 11 September Terrorist Attack, 24 HUM. RTS. Q. 323, 336-38 (2002).
60. DRUMBL, supra note 21.
61. Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 663-65 (S.D.N.Y. 2006). The ATCA also is referred to as the Alien Tort Statute ("ATS").
62. Id. at 663 (citing Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2784 (2006)).
63. Talisman Energy, 453 F. Supp. 2d at 663 (citing Pinkerton v. United States, 328 U.S. 640, 646-47 (1946));
64. see id. at 665.
65. Id. at 665. In the Hamdan case, citation on this point is attributed to TELFORD TAYLOR, ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 36 (1992).
66. Talisman Energy, 453 F. Supp. 2d at 665 n.66.
67. See id. (citing Alison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. 75, 116 (2005)).
68. Talisman Energy, 453 F. Supp. 2d at 668-89. The district court held that [a]iding and abetting liability is a specifically defined norm of international character that is properly applied as the law of nations for purposes of the ATS. To show that a defendant aided and abetted a violation of international law, an ATS plaintiff must show: 1) that the principal violated international law; 2) that the defendant knew of the specific violation; 3) that the defendant acted with the intent to assist that violation, that is, the defendant specifically directed his acts to assist in the specific violation; 4) that the defendant's acts had a substantial effect upon the success of the criminal venture; and 5) that the defendant was aware that the acts assisted the specific violation. Id. at 668 (citation omitted).
69. MCA, Pub. L. No. 109-366, sec. 3(a)(1), §950p(a), 120 Stat. 2600, 2624 (2006) ("This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.").
70. Id. sec. 3(a)(1), §950v(b)(28), 120 Stat, at 2630;
71. see also id. §950v(b)(25), 120 Stat, at 2630 (providing material support for terrorism is listed as an offense).
72. To be precise, there was no majority pronouncement by the Supreme Court on the question whether the law of war recognizes conspiracy to commit war crimes.
73. Rome Statute, supra note 19, art. 8.
74. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2785 n.41 (2006) (plurality opinion).
75. This is particularly applicable if moving cases to law-of-war commissions means, as per Justice Stevens, that charges of conspiracy to commit war crimes cannot be brought.
76. Hamdan, 126 S. Ct. at 2798.
77. Common Article 3, supra note 2, sec. (1)(d);
78. see supra note 11.
79. Hamdan, 126 S. Ct. at 2796-97.
80. Id. at 2790-91.
81. Id. at 2796-97.
82. Id. at 2797 (plurality opinion).
83. Id.
84. Id. at 2797-98 (plurality opinion).
85. See William H. Taft IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 YALE J. INT'L L. 319, 321-22 (2003).
86. Hamdan, 126 S. Ct. at 2797 (plurality opinion). In 2005, Congress enacted the DTA, which provided, inter alia, that "[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." DTA, Pub. L. No. 109-148, div. A, tit. X, §1003(a), 119 Stat. 2739, 2739 (2005). Michael Matheson notes that "the Act did not incorporate other protections guaranteed by Article 75 and Common Article 3, such as the observance of fair judicial procedures and the release of detainees as soon as the circumstances justifying detention cease to exist."
87. Michael J. Matheson, Continuity and Change in the Law of War: 1975 to 2005: Detainees and POWs, 38 GEO. WASH. INT'L L. REV. 543, 549 n.21 (2006).
88. Hamdan, 126 S. Ct. at 2798 (plurality opinion).
89. Id.
90. Id. at 2803, 2805 (Kennedy, J., concurring).
91. Justice Kennedy offered the following as "relevant concerns" in terms of deviating from court-martial practice: "logistical constraints, accommodation of witnesses, security of the proceedings, and the like, not mere expedience or convenience." Id. at 2804.
92. Id. at 2084, 2805-08 (discussing the departures in considerable detail).
93. Id. at 2803.
94. Id.
95. Id. at 2804.
96. Id. at 2758 (listing each opinion's author and Justices joining each).
97. Id. at 2854-55 (Alito, J., dissenting) (citing INT'L COMM. OF RED CROSS, COMMENTARY: GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 39 (1958)).
98. Hamdan, 126 S. Ct. at 2798 (majority opinion).
99. E.g., Restoring the Constitution Act of 2007, S. 576, 110th Cong. (2007).
100. MCA, Pub. L. No. 109-366, sec. 3(a)(1), §949m, 120 Stat. 2600, 2616 (2006) (specifying the level of concurrence among commission members for each sentence to issue).
101. Id. sec. 3(a)(1), §950i, 120 Stat, at 2623.
102. Id. sec. 3(a)(1), §949s, 120 Stat, at 2617. Examples of "cruel or unusual punishments" include flogging and branding. Id.
103. Id. sec. 3(a)(1), §§950a-b, 950f-g, 120 Stat, at 2618-20, 2621-22.
104. The MCA's silence is nominally supplemented by the Manual for Military Commissions, which provides only that those arguing before the commissions are permitted to "refer to generally accepted sentencing philosophies," with specific mention made of rehabilitation, general and specific deterrence, and retribution. U.S. Dep't of Defense, Manual for Military Commissions, pt. II, R. 1001(g) (2007), available at http://defenselink.mil/pubs/pdfs/ Part%20II%20%0MMCs%20(FINAL).pdf.
105. See generally DRUMBL, supra note 21 (documenting retribution, deterrence, expressivism, and other penological rationales).
106. David Mendeloff, Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?, 6 INT'L STUDIES REV. 355, 368 (2004).
107. See Drumbl, supra note 45, at 323-24. More specifically, I contend that the proscription of widespread attacks by terrorists deliberately undertaken against civilian populations and the financing thereof, which are criminalized within transnational criminal law, have moved from this level to that of international criminal law, becoming in the least an obligation erga omnes. The Rome Statute of the ICC, which precedes the Jurisgeneration triggered by the international community's response to the September 11 attacks, does not create jurisdiction to prosecute terrorism. Rome Statute, supra note 19, art. 5.
108. In terms of very preliminary thinking, parallels include the group-based nature of the violence (both in terms of perpetrators and victims) and its ideological-political animus. Moreover, victims are depersonalized and anonymous. Individual participation in genocide and crimes against humanity often is not deviant in the places where these crimes are committed (e.g., the broad public complicity that made genocide in Rwanda possible), as opposed to individual participation in ordinary common crime in settled polities, such as larceny and armed robbery, delinquently committed against the state for purposes of material gain. DRUMBL, supra note 21, ch. 2. Although terrorist activity shares certain characteristics with deviant crime, it also can share participatory characteristics common to mass crime, in particular when generated by an organized transnational nonstate actor that may be interwoven with a state actor (in the case of the 9/11 attacks, al Qaeda in Afghanistan).
109. Extant modalities of punishment include primarily term or life imprisonment and, in certain isolated national cases, the death penalty; and on a subaltern basis, restitutionary and civil remedies in certain contexts.
110. See DRUMBL, supra note 21, ch. 6 (devoting a detailed discussion to these shortfalls).
111. THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 12 (2006).
112. In his dissent in Hamdan, Justice Thomas mentions retribution: "Traditionally, retributive justice for heinous war crimes is as much a 'military necessity' as the 'demands' of 'military efficiency' touted by the plurality, and swift military retribution is precisely what Congress authorized the President to impose on the September 11 attackers ...." Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2838 (2006) (Thomas, J., dissenting).
113. DRUMBL, supra note 21, ch. 6.
114. The 2006 MCA was enacted around the time that the International Military Tribunal at Nuremberg celebrated the 60th anniversary of its judgment and sentence. I understand the limitations to the Nuremberg analogy in that the Nuremberg proceedings were held once the armed conflict had ended and MCA proceedings, if held, will take place while conflict still is ongoing. Insofar as it is unclear when this "War on Terror" will end, however, or on what basis victory can be declared, armed conflict may well remain a permanent condition. If so, purportedly temporary derogations from preexisting legal frameworks can become permanent. The prospect that derogations could become permanent in light of endless war heightens the need for careful ex ante analysis of their necessity.
115. Hamdan, 126 S. Ct. at 2798.
116. id. at 2807 (Kennedy, J., concurring).
117. MCA, Pub. L. No. 109-366, sec. 3(a)(1), §948r(b), 120 Stat. 2600, 2607 (2006).
118. id. sec. 3(a)(1), §948r(c), 120 Stat, at 2607.
119. DTA, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 2739-44 (2005) (to be codified in scattered sections of 10, 28, and 42 U.S.C). The Pentagon has since issued rules for conducting military commission proceedings. Anne Flaherty, Pentagon Sets Rules for Detainee Trials, WASH. POST, Jan. 19, 2007, http://www.washingtonpost.com/wp-dyn/content/ article/2007/01/19/AR2007011900176.html.
120. MCA, sec. 3(a)(1), §948r(c), 120 Stat, at 2607.
121. Id. sec. 3(a)(1), §948r(d), 120 Stat, at 2607.
122. id. sec. 3(a)(1), §949a(b)(l), 120 Stat, at 2608.
123. Id. sec. 3(a)(1), §949a(b)(2)(A), 120 Stat, at 2608.
124. Zernike, supra note 10, at A1.
125. In my other work, I make clear that I am unconvinced that formulaic reliance on internationalized notions of due process invariably leads to credibility for the institutions that enforce international criminal law. The consolidation of internationalized due process, however, means that institutions that do not adhere to this process are susceptible to criticism for their departure from this process. Such has been the case with a host of national initiatives, such as national trials and accountability measures in Rwanda, and there is no reason why the military commissions' departure from these norms would be spared a similar critique. Unlike Rwanda, in the case of the U.S. military commissions there also is a double standard at play given U.S. support of the internationalized due process paradigm, and critique of national initiatives in transitional societies that depart from that paradigm, although U.S. critique has been less trenchant in the case of Rwanda than that of international civil society or European governments. That said, the United States supports justice in Iraq that accorded Saddam Hussein more due process and a considerably more open trial than the MCA accords al Qaeda detainees, despite the procedural shortcomings of the Dujail proceedings.
126. See supra note 79.
127. See The U.N. Criminal Tribunals for Yugoslavia and Rwanda: International Justice or Show of Justice?: Hearing Before the H. Comm. on Int'l Relations, 107th Cong., 24 (2002) (statement of Pierre Prosper, U.S. Ambassador at Large for War Crime Issues) ("The United States remains proud of its leadership in supporting the two ad hoc tribunals and will continue to do so in the future.");
128. Juan E. Méndez, Human Rights Policy in the Age of Terrorism, 46 ST. LOUIS U. L.J. 377, 388 (2002) (noting that the ICTY and ICTR "enjoyed decisive support-of a bipartisan nature-from the United States");
129. Beth K. Dougherty, Combating Impunity: The Charles Taylor Case at the Special Court for Sierra Leone 1 (Mar. 22-25, 2006) (unpublished manuscript, on file with the author) ("The U.S. is the largest single donor to the Sierra Leone [Special Tribunal]."). The United States currently is pressuring the ad hoc tribunals to complete their work by 2008, a prospect that appears improbable. S.C. Res. 1503, 1, U.N. Doc. S/RES/1503 (Aug. 28, 2003);
130. Nancy Amoury Combs, Prosecutor v. Plavšic, Case No. IT-00-39&40/1-S. Sentencing Judgment, 97 AM. J. INT'L L. 929, 935 (2003). The United States did not oppose the referral of the Darfur situation to the ICC.
131. Rupert Cornwell, U.S. Will Deny Aid to Countries That Refuse Court Immunity Deals, INDEP. (London), Nov. 4, 2003, at 13 (reporting official statements made by then-U.S. Undersecretary of State John Bolton).
132. MCA, Pub. L. No. 109-366, sec. 7, 120 Stat. 2600, 2635-36 (2006). See supra note 12 for case law issued following this symposium on the issue of the constitutionality of the MCA's stripping of habeas corpus.
133. See MCA, sec. 6(b)(1)(B), 120 Stat, at 2633-35.
134. Id. sec. 7, 120 Stat, at 2636.
135. Id. sec. 6(b)(1)(B), 6(b)(2), 120 Stat, at 2633-35.
136. Id. sec. 3(a)(1), §948b(g), 120 Stat, at 2602.
137. Id. sec. 6(a)(2)-(a)(3), 120 Stat, at 2632.
138. Beginning in 2002, the Bush Administration maintained that Common Article 3 did not apply to the noninternational conflict against al Qaeda and, therefore, there was no requirement to treat detainees in a manner that accorded with Common Article 3. Memorandum from the White House on Humane Treatment of Taliban and al Qaeda Detainees (Feb. 7, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf. Now that the Supreme Court has ruled that Common Article 3 does apply as a matter of law, in the absence of these retroactive provisions, U.S. interrogators may be exposed to liability owing to the nature of the interrogations they may have conducted and the way they may have treated detainees.
139. See U.N. Econ. & Soc. Council [ECOSOC], U.N. Comm'n on Human Rights, Situation of Detainees at Guantánamo Bay, ¶¶ 83-94, U.N. Doc. E/CN.4/2006/120 (Feb. 15, 2006).
140. For example, U.S. refusal to cooperate fully with criminal prosecution in Germany in the case of Mounir El Motassadeq resulted in a lack of evidence, leading a Hamburg court to overturn some of his convictions for direct involvement, which subsequently were reinstated on further appeal. Geir Moulson, German Court Convicts Sept. 11 Suspect, GLOBE & MAIL (Toronto), Nov. 16, 2006, http://www.theglobeandmail.com/servlet/ story/RTGAM.20061116.wgermterr1116/BNStory/International. The United States "declined to allow testimony by Ramzi Binalshibh," a detainee in U.S. custody at Guantanamo Bay, and "provided only limited summaries" of his evidence. Id. Following the appellate reinstating of the direct involvement convictions, El Motassadeq could face a maximum of fifteen years in prison. Id.
141. Some of these detentions were discontinued in September 2006, and those detainees were transferred to Guantanamo.
142. Detainees at Guantanamo Are Released to Albania, WASH. POST., Nov. 18, 2006, at A13. Since the time of the symposium, this number has dropped to about 385.
143. Q&A: U.S. Military Tribunals, BBC NEWS, Apr. 2, 2007, http://news.bbc.co.uk/2/hi/americas/5134328.stm (noting that ten detainees have been charged with a crime thus far).
144. Common Article 3 does not govern Administrative Review Boards because they are not criminal proceedings. These Boards undertake annual assessments of each Guantanamo detainee to assess whether that detainee continues to pose a threat to the United States or its allies. U.S. Dep't of Def., Office of the Assistant Sec'y of Def., News Release No. 124-06, Guantanamo Bay Detainee Administrative Review Board Decisions Completed (2006), available at http://www.defenselink.mil/releases/release.aspx?ReleaseID=9302. The Board can recommend release, transfer, or further detention. Id. In the first round of reviews, conducted from December 14, 2005 to December 23, 2005, the Boards made 463 recommendations that involved 14 releases. 120 transfers, and 329 continued detentions. Id. Not all countries of which detainees are nationals agree to receive transfers.
145. Pickler, supra note 10.
146. See LAWRENCE DOUGLAS, THE MEMORY OF JUDGMENT: MAKING LAW AND HISTORY IN THE TRIALS OF THE HOLOCAUST 3 (2001) (writing within the context of the Holocaust).
147. DRUMBL, supra note 21, at 173-79.
148. Letter from Ambassador John Negroponte, U.S. Permanent Representative to the U.N., to Richard Ryan, President of the U.N. Security Council, reprinted in United States Officially Informs United Nations of Strikes, WASH. TIMES, Oct. 9, 2001, at A14.
149. Roy Gutman, Christopher Dickey & Sami Yousafzai, Guantanamo Justice?, NEWSWEEK, July 8, 2002, at 34, 34-35.
150. ROBERT HARIMAN, POPULAR TRIALS: RHETORIC, MASS MEDIA, AND THE LAW 2, 18 (1990).
151. I have argued elsewhere in favor of a presumption of qualified deference to local and national initiatives in determining accountability in the wake of mass atrocity. DRUMBL, supra note 21, ch. 7. I identify six interpretive guidelines to contour the assessment whether a national or local initiative should retain its presumption of qualified deference. These guidelines, which operate disjunctively, are (1) good faith; (2) the democratic legitimacy of the procedural rules in question; (3) the specific characteristics of the violence and of the current political context: (4) the avoidance of gratuitous or iterated punishment; (5) the effect of the procedure on the universal substance; and (6) the preclusion of the infliction of great evils on others. All of these characteristics need not be met for the presumption of qualified deference to a local or national accountability measure to remain satisfied. A gross failure on the part of the measure to meet any one of the guidelines, however, could suffice to reverse the presumption in favor of qualified deference. When the presumption is ousted, I posit that it is appropriate for international institutions to intercede and obtain jurisdiction over suspects. (Accordingly, the qualified deference standard can be seen as an alternative to complementarity.) In cases where the presumption is ousted, however, internationalized interventions should not immediately replace in situ modalities, but to the extent possible work in tandem with local actors to develop harmonized structures that respond to the shortcomings. Would the U.S. military commissions retain their presumptive entitlement to qualified deference? In part the inquiry is speculative, in that the commissions have not begun operations, but enough is known of their positive law to make predictions (just as I make predictions with regard to their ability to attain expressive penological aspirations). The following are areas of concern: that the national initiative not void the substantive content of the shared universal value, this being the condemnation of great evil, and that the national method not inflict great evils on individuals, whether perpetrators or third parties. Specifically, 1 am concerned with (1) the indefinite detention of detainees and the use of coercive methods in the past (with evidence obtainable therefrom being admissible) and (2) looking ahead, no indication that methods that fall short of MCA definitions of "grave breaches," but which apparently would be precluded by Common Article 3, are formally banned. I need to consider further the question whether these concerns mean that the military commissions fail the qualified deference test, which in my prior work I have said is the probable lot of national prosecutions in the Sudan, the Iraqi High Tribunal, and customary proceedings in Afghanistan. Even if military commissions retain their entitlement to qualified deference, however, this does not mean that they effectively attain or even approach the expressive aspiration for punishment.
152. In my earlier work on al Qaeda terrorism, I felt this was the kind of ongoing criminal activity, unlike atrocity in East Timor, Sierra Leone, Rwanda, or Bosnia, that would be promisingly well served by a cosmopolitan international tribunal. Although in all cases these acts of atrocity share a collective and group dimension, and are serious crimes of concern to the world community, the transnational nature of al Qaeda's attacks create actual victims all over the world, not preponderantly or even exclusively in one jurisdiction. See Mark A. Drumbl, Victimhood in Our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order, 81 N.C. L. REV. 1, 68, 73-74 (2002). There is therefore a deterritorialized aspect to al Qaeda's overall pattern of criminality. In any event, insofar as the establishment of such a tribunal is improbable, examining how expressive aspirations can be accommodated within a national framework has strategic value. Assuredly, the establishment of a cosmopolitan international tribunal would not in and of itself resolve the disconnect between penological aspirations and the realities of sentence. Far from it: extant international tribunals experience considerable difficulty in implementing sentencing practice that correlates to avowed penological goals.