Terrorism and the convergence of criminal and military detention models

Stanford Law Review

Volumn 60, Issue 4, 2008, Pages 1079-1133

  Chesney, Robert ^a   Goldsmith, Jack ^b  

^a WAKE FOREST UNIVERSITY   (United States)

^b HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 42449103109     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (398)

1. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600.
2. Congress did not expressly address the issue of detention in the September 18, 2001, Authorization for Use of Military Force, see Pub. L. No. 107-40, 115 Stat. 224 (2001), although that authorization has been deemed to authorize at least some forms of traditional military detention.
3. See Hamdi v. Rumsfeld, 542 U.S. 507, 517 (2004). The Intelligence Reform and Terrorism Prevention Act of 2004 included provisions expanding the scope of federal criminal law relating to terrorism, but did not purport to address detention policy per se.
4. See Pub. L. No. 108-458, 118 Stat. 3638. In the Detainee Treatment Act of 2005 (DTA), Congress crafted a framework for judicial review of military detention at Guantanamo but said little about the procedures and substantive standards the military should employ in making detention decisions.
5. See Pub. L. No. 109-148, 119 Stat. 2739. The Military Commissions Act of 2006 reaffirmed the DTA framework for judicial review, but did not further address detention procedures and standards.
6. See Pub. L. No. 109-366, 120 Stat. 2600.
7. Boumediene v. Bush, 127 S. Ct. 3078 (June 29, 2007) (vacating earlier order and granting certiorari).
8. The court previously engaged detention issues in Hamdi v. Rumsfeld, 542 U.S. 507,
9. and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
10. Hamdi, 542 U.S. at 518
11. (citing Yasmin Naqvi, Doubtful Prisoner-of-War Status, 84 INT'L REV. RED CROSS 571, 572 (2002)). Military detention also makes possible the law-of-war prohibition against denial of quarter.
12. See, e.g., HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 9-13 (1968);
13. FRANKLIN E. ZIMRING & GORDON HAWKINS, INCAPACITATION: PENAL CONFINEMENT AND THE RESTRAINT OF CRIME 18-25 (1995);
14. Christopher Slobogin, The Civilization of the Criminal Law, 58 VAND. L. REV. 121, 129 (2005).
15. 21 U.S.C. § 848 (2000).
16. 18 U.S.C. §§ 1961-1968 (2000).
17. See 18 U.S.C. § 1962(c) (making it unlawful to participate in the affairs of a racketeering enterprise by means of either a pattern of racketeering activity or collection of unlawful debt);
18. id. § 1961(1) (defining "racketeering activity" to include a range of indictable offenses);
19. id. § 1961(5) (defining "pattern of racketeering activity" to mean "at least two acts of racketeering activity");
20. U.S.C. § 848(c) (2000) (requiring proof of the defendant's violation of felony offenses listed in subchapters I and II of Chapter 13 ("Drug Abuse Prevention and Control")).
21. Robert M. Chesney, Beyond Conspiracy? Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism, 80 S. CAL. L. REV. 425, 451-53 (2007). As we discuss in more detail below, one way that criminal liability has changed in response to terrorism involves a broadening conception of conspiracy liability.
22. See infra Part III. A.1.b.
23. 18 U.S.C. § 2385 (2000). Congress enacted the Smith Act in the summer of 1940 against the backdrop of widespread concern about the potential presence in the United States of subversive individuals and groups supporting the violent overthrow of the government.
24. See ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES 439-43 (1941);
25. RICHARD W. STEELE, FREE SPEECH IN THE GOOD WAR 69-81 (1999).
26. See THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 110-29 (1970);
27. TED MORGAN, REDS: MCCARTHYISM IN TWENTIETH-CENTURY AMERICA 313-20, 375 (2003).
28. Smith Act of 1940, 54 Stat. 670-71, tit. I, § 2(a)(3)
29. (codified at 18 U.S.C. § 2385 (2000)).
30. 367 U.S. 203 (1961).
31. For a fuller analysis of the decision in Scales, see Robert M. Chesney, The Sleeper Scenario: Terrorism-Support Laws and the Demands of Prevention, 42 HARV. J. ON LEGIS. 1, 66-68 (2005).
32. 367 U.S. at 226-29.
33. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).
34. An international armed conflict refers to all cases of armed conflict, whether or not declared, "between two or more of the High Contracting Parties" to the Conventions. Geneva Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]. The phrase also applies "to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." Id. That another participant in the conflict is not a party to the Conventions has no bearing on the obligation of High Contracting Parties to obey Convention strictures as between one another.
35. See id.
36. See id. arts. 21, 118.
37. See id. art. 4.
38. See id. arts. 4(A)(1), 4(A)(3)-(5).
39. See id. art. 4(A)(2).
40. See id. art. 4(A)(6) (covering those who are inhabitants of unoccupied territory if "on the approach of the enemy," they "spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war").
41. Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. Such status does not extend, however, to those who are "[nationals of a neutral state who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State" so long as their state "has normal diplomatic representation in the State in whose hands they are."
42. Id.
43. See id. art. 27 (authorizing "measures of control and security in regard to protected persons as may be necessary as a result of the war");
44. id. art. 42 (addressing internment in territory of Detaining Power);
45. id. art. 43 (providing for review of necessity of continued internment);
46. id. art. 78 (addressing internment in occupied territory);
47. see also OSCAR M. UHLER ET AL., IV COMMENTARY: GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 207 (Jean S. Pictet ed., Maj. Ronald Griffin & C.W. Dumbleton trans., 1958) (construing Article 27 to include internment).
48. See UHLER ET AL., supra note 23, at 257-58. Some have suggested that non-POWs cannot be detained for preventive purposes except insofar as they are captured while directly participating in hostilities.
49. See, e.g., Brief for National Institute of Military Justice as Amicus Curiae Supporting Petitioners at 16-23, Boumediene v. Bush, 127 S. Ct. 3078 (2007) (No. 06-1195). This argument builds from the premises that non-POWs are civilians, and that civilians may only be targeted with lethal force while directly participating in hostilities.
50. See id. at 16-17. Even if we accept these premises, it does not follow that civilians are free from detention in the context of armed conflict except insofar as they can be linked to direct participation in hostilities (unless one defines direct participation broadly to include membership simpliciter as a detention criterion). A contrary conclusion would require that a "direct participation" requirement be superimposed on the quite different standards of civilian internment in GC IV even though nothing in the text or drafting history of GC IV supports this conclusion.
51. See Brief for National Institute of Military Justice as Amicus Curiae Supporting Petitioners, supra note 24, at 20 n.22;
52. John Cerone, Jurisdiction and Power: The Intersection of Human Rights Law & the Law of Non-International Armed Conflict in an Extraterritorial Context, 40 ISR. L. REV. (forthcoming 2008) (manuscript at 17, on file with authors) (contending that the law of war provides no affirmative authority to kill or detain combatants in the NIAC context);
53. cf. JENNIFER K. ELSEA, CRS REPORT FOR CONGRESS: TREATMENT OF "BATTLEFIELD DETAINEES" IN THE WAR ON TERRORISM, CRS-40, No. RL31367 (Jan. 23, 2007) (stating that in a NIAC a party must be accorded "belligerent" status before the law of war's detention model may be applied). Some have argued that the laws of war are silent on the question of military detention during NIAC, permitting states to employ military detention in that context insofar as domestic legal authorities so provide (subject to international human rights law norms governing detention).
54. See, e.g., Hearing on the U.S. Detention Facility at Guantanamo Bay Before the United States Commission on Security and Cooperation in Europe (Helsinki Commission) (testimony of Gabor Rona, Int'l Legal Dir., Human Rights First) (June 21, 2007), http://www.humanrightsfirst.info/pdf/07621-usls- rona-testimony-full.pdf. Given the existence of the AUMF, which expressly authorizes the use of all necessary and appropriate military force against the entity responsible for the 9/11 attacks (i.e., al Qaeda) and those who harbor it (i.e., the Taliban), it is not clear that this claim differs in substance from the position we describe in the text.
55. See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2091 (2005) (observing that the AUMF - a domestic statute - "should be read as authorizing the President to do what the laws of war permit," absent special circumstances suggesting otherwise).
56. At the Diplomatic Conference that led to the Geneva Conventions, the Czechoslovakian delegate had objected to the draft of what would become Common Article 3 on the ground that it did not expressly state that prisoners of war, as such, would be within its protections. See IIB FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949, at 334 (2004). The Swiss delegate responded that the draft did in fact encompass prisoners of war in that it referred to "members of the armed forces who have laid down their arms," emphasizing that the draft at least ensured minimum standards of treatment for such persons even if it failed to incorporate additional POW benefits familiar from the GC III context such as pay.
57. See id. at 336.
58. See generally LINDSAY MOIR, THE LAW OF INTERNAL ARMED CONFLICT 60 (2002). Both delegates appeared to assume that military detention would exist in at least some NIACs.
59. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 5(1), June 8, 1977, 1125 U.N.T.S. 609, 16 I.L.M. 1442 [hereinafter AP II].
60. CLAUDE PILLOUD ET AL., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, at 1386 (Yves Sandoz et al. eds., 1987);
61. see also AP II, supra note 27, art. 6(5) (calling for amnesty at the conclusion of hostilities for those who have been "interned or detained").
62. The case studies reported by the Civil War Project established by the American Society of International Law in 1966 provide numerous examples. See Kathryn Boals, The Relevance of International Law to the Internal War in Yemen, in THE INTERNATIONAL LAW OF CIVIL WAR 196 (Richard A. Falk ed., 1971) (discussing the detention of prisoners by both France and the FLN);
63. Arnold Fraleigh, The Algerian Revolution as a Case Study in International Law, in THE INTERNATIONAL LAW OF CIVIL WAR, supra, at 315 (discussing the detention of prisoners in Yemen);
64. Donald W. McNemar, The Postindependance War in the Congo, in THE INTERNATIONAL LAW OF CIVIL WAR, supra, at 264 (discussing the detention of prisoners in the Congo);
65. see also ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 196 (1976) (observing that during the Nigerian Civil War (1967-1970) the "number of military prisoners seems to have amounted to several thousand").
66. See In re Winship, 397 U.S. 358, 362 (1970).
67. See FED. R. EVID. 403 (limiting admissibility of unfairly prejudicial evidence);
68. id. 404(a) (prohibiting character evidence to prove conforming conduct of a criminal defendant, except in rebuttal should the defendant open the door with respect to a relevant trait). In general, of course, the rules of evidence restrain the efforts of both prosecution and defense.
69. See Crawford v. Washington, 541 U.S. 36 (2004) (establishing inadmissibility of testimonial statements);
70. Davis v. Washington, 126 S. Ct. 2266 (2006) (clarifying meaning of "testimonial" to bar admission of victims' written statements in an affidavit given to a police officer).
71. See FED. R. CRIM. P. 43 (requiring defendant's presence in courtroom at "every trial stage").
72. See Jencks v. United States, 353 U.S. 657, 672 (1957) ("The burden is the Government's . . . to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession.").
73. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
74. See Giglio v. United States, 405 U.S. 150, 154 (1972).
75. See United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800).
76. See 18 U.S.C. § 3501 (2000) (specifying factors concerning voluntariness of confession);
77. Miranda v. Arizona, 384 U.S. 436 (1966).
78. See FED. R. CRIM. P. 16(a)(1)(E).
79. See 18 U.S.C.A. § 3500 (West 2007).
80. U.S. CONST. amend. VI.
81. Id. amend. V.
82. Id. amend. VI.
83. See, e.g., United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983) (construing Sixth Amendment to require unanimity on the factual elements of the charged offense).
84. U.S. CONST. amend. V.
85. Id.
86. See, e.g., 28 U.S.C.A. § 2254 (West 2007) (habeas review of state convictions);
87. id. § 2255 (habeas review of federal convictions);
88. Daniel J. Meltzer, Harmless Error and Constitutional Remedies, 61 U. CHI. L. REV. 1 (1994) (discussing the scope and limits of appellate rights in criminal cases).
89. See FED. R. CRIM. P. 44;
90. Gideon v. Wainwright, 372 U.S. 335 (1963). Note that the list includes neither Fourth Amendment search-and-seizure restraints nor the manifold statutory and administrative restraints on the investigative process. By and large, these measures serve privacy values and are not directed toward increasing the accuracy of the fact-finding process; indeed, at times they may serve the former value at the expense of the latter.
91. Some commentators have interpreted this silence to signify an intent to leave the question of process within the discretion of the detaining state. See Naqvi, supra note 4, at 582.
92. ROSAS, supra note 29, at 409. The ICRC Commentary explains that the original language proposed by the ICRC on this issue called for a determination by "some responsible authority," but that this language drew an objection on the ground that "decisions which might have the gravest consequences should not be left to a single person, who might often be of subordinate rank."
93. JEAN DE PREUX ET AL., III COMMENTARY: GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 77 (Jean S. Pictet ed., A.P. de Heney trans., 1960). The phrase "military tribunal" was considered as a replacement, but rejected on the ground that compelling such a proceeding "might have more serious consequences than a decision to deprive [the detainee] of the benefits afforded by the Convention."
94. Id.
95. (citing FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949, supra note 26, at 270). The drafters of GC III settled on "competent tribunal" as an acceptable alternative.
96. See id. During the drafting of Additional Protocol I, which contains a comparable provision at Article 45(1), the drafters noted that the tribunal may be "administrative in nature."
97. XV OFFICIAL RECORDS OF THE DIPLOMATIC CONFERENCE ON THE REAFFIRMATION AND DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS: GENEVA (1974-1977), at 392 (1978) [hereinafter OFFICIAL RECORDS].
98. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1) art. 45(1), June 8, 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1390 [hereinafter AP I].
99. One delegate to the AP I negotiations, observing the absence of specific procedural safeguards for tribunal hearings, noted that the matter should be determined by the tribunals themselves as "we would be ill-advised if we tried to set up rules of evidence with regard to the question of how to prove that one belongs to an organization." XV OFFICIAL RECORDS, supra note 50, at 472 (Mar. 19, 1975). Another delegate objected, arguing that it would be better to specify "in precise terms the guarantees of protection that the competent tribunal could and should offer."
100. Id. at 485 (Mar. 20, 1975). Among other things, he suggested, the draft should include (i) a requirement that the tribunal be a "properly constituted, non-political military court," (ii) a prohibition on "moral or physical coercion" used to induce an admission of non-POW status, (iii) a right to call witnesses, (iv) a right to an interpreter, and (v) the right to be informed in advance of the nature of the allegations against him.
101. Id. Ultimately these suggestions were rejected, and the final version of AP I remained silent on the question of tribunal procedures.
102. Cf. ROSAS, supra note 29, at 409 ("[The tribunal] may be an administrative board of officers, determining the status of a captured person in a rather summary fashion immediately upon capture.").
103. AP I art. 75(3). According to the Commentary to Article 75, "Internees will . . . generally be informed of the reason for such measures in broad terms, such as legitimate suspicion, precaution, unpatriotic attitude, nationality, origin, etc. without any specific reasons being given." PILLOUD ET AL., supra note 28, at 875;
104. see also Ashley S. Deeks, Administrative Detention During Armed Conflict, 40 CASE W. RES. J. INT'L L. (forthcoming 2008) (discussing limited specification of procedural safeguards).
105. Article 27, which provides general authority for necessary security measures such as internment, says nothing specifically about process. See GC IV, supra note 22, art. 27. Article 43, dealing with internment of persons located in the detaining state's own territory, specifies a right to have "such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose," on at least a twice-yearly basis.
106. Id. art. 43. The ICRC commentary correctly notes that the "safeguard provided [by this provision] is an a posteriori arrangement," with "a great deal [left] to the discretion of the State of residence in the matter of the original internment."
107. UHLER ET AL., supra note 23, at 260;
108. see also id. at 261 (concluding that "[t]he procedure provided for in the Convention is a minimum," and encouraging states to go further) Article 78, which deals with internment in occupied territory, states that internment decisions "shall be made according to a regular procedure . . . [that] shall include the right of appeal," and that such determinations "shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power."
109. GC IV, supra note 22, art. 78. The ICRC commentary concludes that beyond this requirement "[i]t is for the Occupying Power to decide on the procedure to be adopted."
110. UHLER ET AL., supra note 23, at 368. The drafters of GC IV, in sum, were more concerned with mandating humane conditions of treatment for those who are interned than with attempting to regulate the process of determining who should be interned in the first place.
111. See generally Deeks, supra note 53 (summarizing state practice).
112. Notably, the ICRCs study of the customary law of war does not discuss state practice with respect to procedural safeguards in the international armed conflict context (beyond noting the treaty provisions discussed in the text above), though it does note that detention in accordance with GC III and IV does not violate the customary norm against arbitrary deprivation of liberty. See 1 Jean-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL LAW 344 (2005).
113. Military Assistance Command Vietnam Directive No. 20-5 (Sept. 21, 1966, as amended Mar. 15, 1968), in 62 AM. J. INT'L. L. 765, 768 (1968) [hereinafter MACV Dir. 20-5]. These directives appear to be the first efforts to implement Article 5 in writing.
114. See ELSEA, supra note 25, at CRS-29.
115. MACV Dir. 20-5, supra note 56, at 768, 771-73 (Annex A(7)(c), (8), and (14)(1-n)).
116. See Army Regulation 190-8, § 1-6(e)(3), (5) (1997), available at http://www.usapa.army.mil/pdffiles/r190_8.pdf.
117. See Prisoner-of-War Status Determination Regulations, SOR/91-134 § 15 (1991) ("(1) A tribunal may hear evidence in camera and in the absence of the detainee where the tribunal considers it necessary to do so in the interest of national security. (2) The tribunal shall give the detainee an oral or a written summary of any evidence heard in the absence of the detainee that, in the opinion of the tribunal, would not be injurious to national security.").
118. See Naqvi, supra note 4, at 588. Naqvi relies on the Prisoner of War Determination of Status Regulations, attached as the First Schedule to the 1958 Royal Warrant Governing the Maintenance of Discipline Among Prisoners of War and promulgated as Appendix XVII of the 1958 British Manual of Military Law. Paragraph 5 of the Regulation does indeed call for provision of these rights, though only "so far as is practicable."
119. Cf. Gordon Risius, Prisoners of War in the United Kingdom, in THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 297 (Peter Rowe ed., 1993) (describing - with respect to suspected members of Iraq's armed forces located in the United Kingdom itself during the Gulf War - the decision not only to permit legal representation but, also, to provide that representation at public expense for detainees unable to afford their own counsel).
120. Incarceration of Unlawful Combatants Law, 5762-2002 § 3(a) (Isr.), available at http://www.jewishvirtuallibrary.org/jsource/Politics/ IncarcerationLaw.pdf.
121. Id. § 7. If the Minister of Defense determines in writing that a force engages in hostile acts, this finding is presumed to be correct unless the detainee can prove otherwise.
122. Id. § 8.
123. See id. § 7.
124. See id. §§ 5(a), 6(a). The detainee may appeal the District Court's determination to a judge of Israel's Supreme Court.
125. See id. § 5(d).
126. See id. § 5(e).
127. See Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1429-32 (2001);
128. Carol S. Steiker, Forward: The Limits of the Preventive State, 88 J. CRIM. L. & CRIMINOLOGY 771, 771-76 (1998).
129. See, e.g., Robinson, supra note 66, at 1433.
130. See generally Cerone, supra note 25;
131. Theodor Meron, The Humanization of Humanitarian Law, 94 AM. J. INT'L L. 239 (2000);
132. Jelena Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence, 87 INT'L REV. RED CROSS 375 (2005).
133. But see SECOND AND THIRD PERIODIC REPORT OF THE UNITED STATES OF AMERICA TO THE UNITED NATIONS COMMITTEE ON HUMAN RIGHTS CONCERNING THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1130 (Oct. 21, 2005)), available at http://www.state.gov/g/drl/rls/55504.htm (explaining the United States position that the International Covenant on Civil and Political Rights does not apply in armed conflict).
134. As a general rule, lex specialis establishes that law of war principles control when both bodies of law apply simultaneously. See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 256-57 (July 8).
135. See George H. Aldrich, Guerilla Combatants and Prisoner of War Status, 31 AM. U. L. REV. 871, 871-74 (1982) (reviewing the debate concerning protected status for guerrilla fighters in connection with the drafting of the Additional Protocols, and defending the protective approach reached in Additional Protocol I);
136. W. Hays Parks, Air War and the Law of War, 32 A.F. L. REV. 1, 84 (1990) (describing nature of the disagreement concerning protection for guerrilla fighters);
137. cf. John B. Bellinger, III, Introductory Remarks, 38 GEO. WASH. INT'L L. REV. 501, 506-07 (2006) (discussing grounds for U.S. opposition to extending POW status to persons who do not comply with GC III Article 4(A)(2) criteria).
138. See generally TIMOTHY NAFTALI, BLIND SPOT (2005).
139. WALTER LAQUEUR, A HISTORY OF TERRORISM 49 (2d prtg. 2002).
140. See, e.g., GEORGE P. SHULTZ, TURMOIL AND TRIUMPH: MY YEARS AS SECRETARY OF STATE (1995) (discussing disputes in the Reagan Administration concerning the propriety of resorting to military force in response to terrorist attacks).
141. For a useful pre-9/11 criticism of the criminal law model, see Spencer J. Crona & Neal A. Richardson, Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism, 21 OKLA. CITY U. L. REV. 349 (1996).
142. Examples include the shelling of hills outside Beirut after the bombing of the Marine barracks in 1983, and the 1986 air strikes in Libya.
143. See, e.g., RICHARD A. CLARKE, AGAINST ALL ENEMIES: INSIDE AMERICA'S WAR ON TERROR (2004);
144. Crona & Richardson, supra note 73.
145. See MICHAEL SCHEUER, IMPERIAL HUBRIS: WHY THE WEST IS LOSING THE WAR ON TERROR (2004);
146. MICHAEL SCHEUER, THROUGH OUR ENEMIES' EYES: OSAMA BIN LADEN, RADICAL ISLAM, AND THE FUTURE OF AMERICA (2006);
147. LAWRENCE WRIGHT, THE LOOMING TOWER: AL-QAEDA AND THE ROAD TO 9/11 (2007).
148. See NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT, 128,132 & n.123 (2004);
149. see also STEVE COLL, GHOST WARS: THE SECRET HISTORY OF THE CIA, AFGHANISTAN, AND BIN LADEN FROM THE SOVIET INVASION TO SEPTEMBER 10, 2001, at 427-28 (2004).
150. See COLL, supra note 77;
151. JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 106 (2007);
152. THE 9/11 COMMISSION REPORT, supra note 77, pts. 4, 6 (2004).
153. See GOLDSMITH, supra note 78, at 106;
154. see also Extraordinary Rendition in U.S. Counterterrorism Policy: The Impact on Transatlantic Relations: J. Hearing Before the Subcomm. on International Organizations, Human Rights and Oversight and the Subcomm. on Europe of the H. Comm. on Foreign Affairs, 110th Cong. 13 (2007) (statement of Michael Scheuer, Former Chief, Bin Laden Unit, Central Intelligence Agency) (stating that Justice Department lawyers required rendition to be limited to persons constituting a "threat to the United States and/or its allies");
155. Michael Scheuer, A Fine Rendition, N. Y. TIMES, Mar. 11, 2005, at A23.
156. See THE 9/11 COMMISSION REPORT, supra note 77, pt. 4.2.
157. See Gerald P. McGinley, The Achille Lauro Affair - Implications for International Law, 52 TENN. L. REV. 691, 693 (1985).
158. See U.S. Counter-Terrorism Strategy: Hearing Before the S. Judiciary Comm., 106th Cong. (1998) (statement of Louis J. Freeh, Director, Federal Bureau of Investigation) (describing renditions of terrorism suspects to the United States).
159. See, e.g., United States v. Yunis, 924 F.2d 1086, 1089 (D.C Cir. 1991) (describing Operation Goldenrod, in which a terrorism suspect was lured out of Lebanon to the high seas and there taken into U.S. custody).
160. See GEORGE TENET WITH BILL HARLOW, AT THE CENTER OF THE STORM: MY YEARS AT THE CIA 112-21 (2007);
161. THE 9/11 COMMISSION REPORT, supra note 77, at 119-35, 141-42, 182-83, 187-89, 205-07.
162. For further discussion of the limited reach of criminal prosecution during the pre-9/11 era, see Andrew C. McCarthy & Alykhan Velshi, We Need a National Security Court 6 (2006) (unpublished manuscript), available at http://www.defenddemocracy.org/usr_doc/Court.doc (noting that prosecutors obtained convictions in each pre-9/11 case, but that such prosecutions included fewer than three dozen individuals while entailing tremendous expenditures of time and money).
163. The indictment in the "day of terror" bomb plot described the conspiracy both in terms of specific targets and in terms of a general desire to inflict harm on American civilians wherever they might be found. See Chesney, supra note 9, at 457-58. The latter allegations, standing alone, are similar to the conspiracy charge that prosecutors ultimately would pursue - successfully - against Jose Padilla in a case that epitomizes the convergence trend.
164. See infra Part III.A.1.b.
165. See Andrew C. McCarthy, Terrorism on Trial: The Trials of al Qaeda, 36 CASE W. RES. J. INT'L L. 513, 520 (2004) (explaining that shortly after disclosure of the co-conspirator list to the defendants in the Rahman trial, the list was in bin Laden's hands in Khartoum);
166. Michael B. Mukasey, Editorial, Jose Padilla Makes Bad Law, WALL ST. J., Aug. 22, 2007, at Al 5 (describing the same incident).
167. See Mukasey, supra note 87 (noting that testimony during the trial of Ramzi Yousef may have tipped off certain individuals as to the government's capacity to monitor their phone calls, resulting in the loss of that source of intelligence).
168. See 18 U.S.C.A. app. 3 §§ 1-16 (West 2007). The CIPA process itself can lead to difficult issues in connection with terrorism prosecutions. In United States v. Bin Laden, for example, Wadih El-Hage contended that his Sixth Amendment confrontation right was violated by a CIPA process in which defense counsel - but not the defendant himself - had access to classified information for purposes of making a CIPA § 5 designation (indicating that the defense would seek to disclose the information at trial, thus necessitating further CIPA review).
169. United States v. Bin Laden, No. 98-CR-1023, 2001 WL 66393 (S.D.N. Y. Jan. 25, 2001). The court rejected the argument despite El-Hage's contention that his counsel was not in as good a position as he was to determine the significance of the information at issue.
170. See id. at *5. That ruling foreshadowed the greater procedural tensions that would arise later in the Moussaoui prosecution.
171. Attorney General Michael Mukasey, formerly of the United States District Court for the Southern District of New York, has drawn attention to the additional question of resources, observing that terrorism-related cases "have strained the financial and security resources of the federal courts near to the limit." See Mukasey, supra note 87. If the problem were limited to resources, however, budgetary solutions could suffice to cure it.
172. As an illustration of other procedural issues that complicate the use of the criminal model with respect to transnational terrorist groups such as al Qaeda, Andrew McCarthy and Alykhan Velshi note that uncertainty regarding the scope of the Fifth Amendment in the context of overseas investigations of noncitizens by U.S. officials nearly led to the suppression of the confession of one defendant personally involved in the 1998 bombing of the U.S. embassy in Nairobi, Kenya. See McCarthy & Velshi, supra note 85, at 8 n.10.
173. There are, to be sure, targeted efforts to make traditional military detention rules more flexible. Most notably, the CSRT process is distinct from the AR 190-8 process in that CSRT appears to tolerate use of at least some forms of coerced testimony.
174. See Bradley & Goldsmith, supra note 25, at 2113-16 (pointing out that the AUMF sheds no light on this issue, but noting that the law of war does provide some guidance).
175. See id. at 2113-14 & n.302 (giving the example of Richard Reid).
176. See id. at 2113.
177. See Raffi Khatchadourian, Azzam the American: The Making of an al-Qaeda Homegrown, THE NEW YORKER, Jan. 22, 2007, at 50.
178. Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (observing that the prospect of indefinite detention in an unorthodox conflict might "unravel" the assumptions underlying the traditional military detention model).
179. Bismullah v. Gates, 501 F.3d 178 (D.C Cir. 2007),
180. amended by Nos. 06-1197, 06-1397, 2007 WL 2851702 (D.C. Cir. Oct. 3, 2007).
181. See, e.g., United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004);
182. United States v. Reid, 211 F. Supp. 2d 366 (D. Mass. 2002).
183. See, e.g., United States v. Lakhani, 480 F.3d 171 (3d Cir. 2007) (affirming conviction for attempting to sell a surface-to-air missile to undercover agents posing as terrorists);
184. see also Chesney, supra note 13, at 44-46 (collecting cases).
185. See 18 U.S.C.A. § 2339B(a)(1) (West 2007).
186. The origins of § 2339B are discussed in Chesney, supra note 13, at 4-18.
187. See, e.g., United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (affirming material support conviction of defendants who gave profits from black market cigarette traffic to Hezbollah),
188. vacated on other grounds, 543 U.S. 1097 (2005).
189. See Chesney, supra note 13, at 19 (describing the nature of
190. id. at 45 (describing comparable prosecutions after 9/11). Between September 2001 and July 2007, 108 separate defendants have been charged with at least one count of directly violating § 2339B or attempting or conspiring to violate § 2339B.
191. See Robert M. Chesney, Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing Data in Light of the "Soft Sentence " and "Data Reliability" Critiques, 11 LEWIS & CLARK L. REV. 851, 884 (2007).
192. See 18 U.S.C.A. § 2339A(b)(1) (West 2007). Section 2339B incorporates the § 2339A definition by reference.
193. See id. § 2339B(g)(4).
194. See 18 U.S.C. § 2339A (2000) (amended by Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638);
195. JEFF BREINHOLT, COUNTERTERRORISM ENFORCEMENT: A LAWYER'S GUIDE 284 (2004) (explaining that § 2339B could be used in this manner).
196. See Chesney, supra note 13, at 39-44 (citing sources).
197. See id. at 40.
198. See id. at 41.
199. See id.
200. See id. at 41-42.
201. See id. at 41-43.
202. See Michael Isikoff & Daniel Kladiman, The Road to the Brig, NEWSWEEK, Apr. 26, 2004, at 26.
203. Of the sixty-two individual defendants facing § 2339B charges since 9/11, forty-five have had the charge resolved without proceeding to trial. See Chesney, supra note 104, at 885 tbl.6 (reporting disposition data).
204. See United States v. Lindh, 212 F. Supp. 2d 541, 569-70 (E.D. Va. 2002) (observing, in the course of rejecting freedom of association challenge, that Lindh had joined a group that carries out violence, that "those who join [such groups], at whatever level, participate in the groups' acts of terror, violence, and murder," and that "the First Amendment's guarantee of associational freedom is no license to supply terrorist organizations with resources or material support in any form, including services as a combatant").
205. See United States of America's Bill of Particulars at 2, United States v. Warsame, No. CR-04-29 (D. Minn. Mar. 16, 2007) (elaborating that the § 2339B charge rests on personnel theory, as well as training and financial elements of the material support definition);
206. Defendant's Brief Addressing the Bill of Particulars and the Constitutionality of Section 2339B as Applied at 2-5, Warsame, No. CR-04-29 (Apr. 9, 2007) (contesting adequacy of government's bill of particulars).
207. Indictment, United States v. Kourani, No. 03-CR-81030 (E.D. Mich. Nov. 19, 2003), available at http://news.findlaw.com/cnn/docs/terrorism/ uskourani111903ind.pdf. The indictment against Kourani specified his membership in Hezbollah, but also alleged recruiting activities.
208. United States v. Battle, No. 02-CR-399 (D. Or. Dec. 1, 2003).
209. United States v. Faris, No. 03-CR-189 (E.D. Va. Oct. 28, 2003).
210. United States v. Royer, No. 03-CR-296 (E.D. Va. Apr. 9, 2004).
211. 18 U.S.C.A. § 2339B(g)(6) (West 2007).
212. One statute that extends at least some degree beyond the scope of § 2339B is 50 U.S.C.A. § 1705 (West 2007), which imposes criminal liability for willful violations of blocking or sanction orders promulgated by the executive branch pursuant to the International Emergency Economic Powers Act (IEEPA). In practical terms, § 1705 closely tracks § 2339B in that it imposes a transactional embargo upon specific designees.
213. U.S.C.A. § 1702(a)(1)(A), (B) (West 2007). Though the IEEPA framework does not expressly prohibit the provision of one's own self as "personnel" in the service of a blocked entity, the statute has been construed by the executive branch to allow for executive orders that prohibit the provision of "services" to designated entities.
214. See, e.g., Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23, 2001). Thus § 2339B and § 1705 frequently are charged in tandem. But § 1705 is capable of broader reach because IEEPA permits designation of individuals as well as groups, whereas § 2339B extends only to FTOs.
215. See 18 U.S.C.A. § 956(a) (West 2007).
216. See generally Chesney, supra note 9, at 459-64 (reviewing origins and evolution of § 956). Prosecutors probably considered charging Padilla with providing himself to al Qaeda as personnel, in violation of § 2339B. Ultimately they chose not to do so, however, perhaps as a result of uncertainty as to whether the evidence described would suffice to show that Padilla understood he was joining al Qaeda as such as opposed to the broader extremist movement of which al Qaeda is but a part.
217. Superceding Indictment ¶ 2, United States v. Hassoun, No. 04-CR-60001 (S.D. Fla. Nov. 17, 2005).
218. See Defendant Hassoun's Motion for Bill of Particulars and Incorporated Memorandum of Law at 27, Hassoun, No. 04-CR-600001 (Feb. 13, 2006);
219. Letter from Russell R. Killinger, Assistant U.S. Att'y, to Kenneth Swartz & Jeanne Baker (July 7, 2006) (attached to Defendant Hassoun's Motion for Clarification of Court's Ruling as to What Government Must Particularize Regarding the "Manner and Means" of the Conspiracy, Hassoun, No. 04-CR-60001 (July 25, 2006)).
220. Letter from Russell R. Killinger, supra note 124.
221. Id.
222. Jury Instructions at 21, Hassoun, No. 04-CR-60001 (Aug. 14, 2007).
223. Padilla and his codefendants also were convicted of violating 18 U.S.C.A. § 2339A (West 2007), which criminalizes the provision of material support to anyone so long as the defendant knew or intended that the support would facilitate commission of one of the particular criminal acts listed in that statute. In this case, the support included Padilla providing himself as personnel, and the predicate offense was the § 956(a) conspiracy.
224. For a full discussion of § 2339A liability as another mode of expanding the scope of substantive criminal law in terrorism-related cases, see Chesney, supra note 9, at 474-92.
225. In contrast, conspiracy liability at first blush appears narrower than material support liability with respect to the distinct question of mens rea. Whereas conspiracy requires a showing of intent on the part of the defendant, § 2339B ordinarily requires merely a showing of knowledge (i.e., proof that the defendant knew the identity of the recipient of the support, and either knew of the recipient's designation as an FTO or at least knew that the recipient engaged in terrorism). 18 U.S.C.A. § 2339B(a)(1) (West 2007). Where the material support charge depends upon the self-provision of "personnel," however, Scales at least arguably requires proof of intent in addition to knowledge.
226. See Scales v. United States, 367 U.S. 203 (1961);
227. supra note 13 and accompanying text.
228. Jencks v. United States, 353 U.S. 657, 672 (1957) ("[T]he burden is the Government's . . . to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession.").
229. See 18 U.S.C.A. app. 3 §§ 1-16 (West 2007).
230. See United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004).
231. The Fourth Circuit directed the district court on remand to supervise an "interactive process" in which the defense would first propose quotations from the interrogation summaries that it wished to use, followed by objections from the prosecution or suggestions for additional language to be included. Id. at 479-80.
232. See Curt Anderson, Padilla Defense Questions Terror Expert, ABC NEWS, July 2, 2007, http://abcnews.go.com/US/WireStory?id=3338938.
233. See Greg Krikorian, Anonymous Testimony Pushes Limits: Defense Lawyers Say Justice Isn't Served if They Can't Know the IDs of Israeli Agents, L. A. TIMES, Dec. 26, 2006, at 1 (discussing approval for such procedures in a material support prosecution in Chicago);
234. Jason Trahan, More Anonymity in Terror-Linked Holy Land Case, DALLAS MORNING NEWS, Aug. 16, 2007, at 8B (discussing approval for such procedures in material support prosecution in Dallas).
235. See Ryan Goodman & Derek Jinks, International Law, U.S. War Powers, and the Global War on Terrorism, 118 HARV. L. REV. 2653, 2654-58 (2005) (arguing that "enemy combatant" should encompass only lawful combatants (i.e., those qualified for POW status if captured) and civilians who directly participate in hostilities, and that mere membership without conduct is not enough for an al Qaeda member to be placed in the latter category).
236. See Hamdi v. Rumsfeld, 542 U.S. 507, 512-13 (2004). In an order issued in November 2001, President Bush had authorized detention of individuals on status-based grounds-i.e., upon a determination of membership in al Qaeda, without requiring proof of any particular conduct-as well as on conduct grounds (authorizing detention of any person who had engaged in, assisted, or conspired to commit acts of international terrorism against the United States, or who had harbored such persons or any al Qaeda member).
237. Id. at 524-25.
238. Id. at 528, 532.
239. Id. at 533;
240. see also id. at 537-38 (noting that a citizen-detainee must have the opportunity to challenge the government's factual assertions).
241. This conclusion is in tension with the plurality's approving reference to AR 190-8, id. at 538, which as noted previously expressly contemplates the use of ex parte evidence.
242. See id. at 533-34. The opinion expressly approves of a scenario in which a "knowledgeable affiant" would merely summarize the contents of "documentation regarding battlefield detainees" that "already is kept in the ordinary course of military affairs," so long as the detainees then has a fair chance to offer rebuttal before a neutral decisionmaker.
243. Id. at 534.
244. See id. at 537-39.
245. Rasul v. Bush, 542 U.S. 466 (2004).
246. Combatant Status Review Tribunal Process § B (attached to memorandum from Gordon England, Sec'y of the U.S. Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba (July 29, 2004)) [hereinafter 2004 CSRT Procedures], available at www.defenselink.mil/news/Jul2004/d20040730comb.pdf
247. (implementing memorandum from Paul Wolfowitz, Deputy Sec'y of Def. to Sec'y of the Navy, Order Establishing Combatant Status Review Tribunal (July 7, 2004), available at www.defenselink.mil/news/Jul2004/d20040707review.pdf (emphasis added)).
248. CSRT procedures were reissued in July 2006, without substantive change insofar as the issues discussed in the text above are concerned. See Combatant Status Review Tribunal Process § B (attached to memorandum from Gordon England, Deputy Sec'y of Def., to Sec'ys of the Military Dep'ts et al., Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba (July 14, 2006)), available at http://www.defenselink.mil/news/Aug2006/ d20060809CSRTProcedures.pdf.
249. 2004 CSRT Procedures, supra note 144, §§ F(6)-(7), G(7).
250. Id. § F(5). The detainee does receive assistance from a "personal representative," but that person is not an advocate for the detainee in any sense.
251. Id. §§ E(2), G(9)(a).
252. Id. §§ E(2), G(9)(b).
253. Id. § E(3).
254. Id. § D(2).
255. Id. § F(3).
256. Id. § G(11).
257. Id.
258. In addition to the CSRT process, the Defense Department in 2004 instituted a separate, annually recurring review process called an Administrative Review Board (ARB). The ARB's task is not to reconsider the CSRT's determination of eligibility for detention. Rather, as originally formulated, the ARB considers whether the United States should continue to hold a detainee or instead release or transfer the person to another country based on whether the person "remains a threat to the United States and its allies in the ongoing armed conflict against al Qaeda and its affiliates and supporters or if there is any other reason that it is in the interest of the United States and its allies" to keep the detainee in custody. Paul Wolfowitz, Deputy Sec'y of Def., Order: Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba 3 (May 11, 2004), available at http://www.defenselink.mil/news/May2004/ d20040518gtmoreview.pdf.
259. When the ARB procedures were revised in July 2006, the standard was elaborated to require consideration of (i) whether the detainee "continues to pose a threat to the United States or its allies," (ii) "the likelihood that the enemy combatant may be subject to trial by military commission," and (iii) "whether the enemy combatant is of continuing intelligence value." Administrative Review Board Process § 3(f) (attached to Memorandum from Gordon England, Deputy Sec'y of Def., to Sec'y s of the Military Dep'ts et al., Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba (July 14, 2006)), available at http://www.defenselink.mil/news/Aug2006/ d20060809ARBProceduresMemo.pdf. The ARB process is particularly important in light of language in the Hamdi plurality warning against indefinite detention just for the sake of intelligence-gathering and against detention without end in an unorthodox conflict.
260. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Reg. 190-8, para. 1-6 (1997), available at http://www.usapa.army.mil/pdffiles/r190_8.pdf.
261. The AR 190-8 provision specifying tribunal procedures does not speak to the question of whether coerced evidence is admissible, see id., though it does specify that the detainee cannot be compelled to testify at the proceeding itself,
262. see id. para. 1-6a(8).
263. A separate section of AR 190-8 does prohibit coercive interrogation of prisoners, however. See id. para. 2-1a(1)(d). Other differences between CSRTs and AR 190-8 bear less directly on fact-finding accuracy. AR 190-8 processes are presumed to occur soon after capture and in theater, for example, whereas CSRTs take place substantially later and at Guantanamo itself. CSRTs and 190-8 proceedings also differ in that the latter are empowered to confer POW status on a detainee, but the CSRTs are not.
264. Id. para. 1-6.
265. A combination of Freedom of Information Act (FOIA) litigation, habeas proceedings, and its own initiative has caused the Defense Department to make public the unclassified portions of the record used in connection with each CSRT proceeding. A collection of these records is available at http://www.dod.mil/ pubs/foi/detainees/csrt_arb/index.html.
266. Mark Denbeaux & Joshua Denbeaux, Report on Guantanamo Detainees: A Profile of 517 Detainees Through Analysis of Department of Defense Data (Seton Hall Pub. Research Paper No. 46, 2006), available at http://ssrn.com/abstract=885659. Professor Mark Denbeaux is counsel to two Guantanamo detainees.
267. See id. at 2. After observing that the government's summaries divide the evidence against a detainee into a section concerning associational ties and a section concerning commission of specific hostile acts, Denbeaux et al. emphasize that "[m]ore often than not the Government finds that the detainees did not commit the hostile or belligerent acts."
268. Id. at 8. The report does indicate that evidence links eighty-nine percent of the detainees to al Qaeda, the Taliban, or both.
269. See id. at 8 fig. 1, 9 fig.2. It also indicates that forty-five percent of detainees actually committed hostile acts of some description, even if not directly against U.S. forces. Id., at 11 fig.7.
270. Id. at 16.
271. Id. at 22.
272. 355 F. Supp. 2d 443 (D.D.C 2005).
273. Id. at 454-68. Judge Green did not entirely foreclose the possibility that ex parte evidence could be used consistent with due process. Rather, she held that such evidence constitutionally could be used only if the detainee were represented by counsel who would be given access to the materials, thus reconciling the government's legitimate security interests with the minimum requirements of adversariness.
274. See id. at 471.
275. See id. at 468-72.
276. See id. at 472-74.
277. Id. at 475.
278. As noted in Part I.A, supra, the Supreme Court in Scales actually upheld the constitutionality of criminalizing membership in dangerous organizations, subject to proof of active membership and intent to facilitate the unlawful ends of the group.
279. See id. at 475-76.
280. See al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007),
281. reh 'g en banc granted, No. 06-7427 (Aug. 22, 2007) (holding that the president lacks authority to hold petitioner in military detention within the United States).
282. Id. at 185 & n.13.
283. Id. at 195. This conclusion is not the last word on this issue; the Fourth Circuit recently granted en banc review, and the Supreme Court may grant certiorari in the case whichever way the en banc court goes. It is also possible that al-Marri will be transferred to civilian or foreign custody before the Supreme Court has the opportunity to rule in his case.
284. See Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005) (consolidated with Boumediene v. Bush for purposes of that opinion).
285. Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2680, 2739 (to be codified at 42 U.S.C. § 2000dd).
286. Id. § 1005(e)(2)(A). The utility of that review is colored, of course, by the presumption of accuracy that applies to the government's evidence under the CSRT rules, a presumption that the DTA endorses.
287. See id. § 1005(a)(1)(A).
288. 126 S. Ct. 2749 (2006). Hamdan also appeared to confirm that the conflict with al Qaeda is a non-international armed conflict, though the opinion was at pains not to be clear on that point.
289. See id. at 2756-57.
290. Pub. L. No. 109-366, § 7(a), 120 Stat. 2600, 2635-36
291. (to be codified at 28 U.S.C. § 2241(e)) (referring to section 1005(e)(2) and (3) of the DTA).
292. Detainee Treatment Act §1005(e)(2)(C)(ii).
293. Id. § 1005(e)(2)(C)(i).
294. 501 F.3d 178 (D.C. Cir. 2007).
295. Id. at 180 ("We therefore hold that . . . the record on review consists of all the information a Tribunal is authorized to obtain and consider, . . . defined . . . as 'such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant....'"). The benefits of the ruling may be somewhat illusory, however, and not just because the government is seeking en banc review of the ruling. As noted previously, CSRT procedures impose significant limits on the obligation of other government agencies to provide information to the CSRT process, including explicit authority to withhold classified information.
296. See supra notes 145-53 and accompanying text.
297. Bismullah, 501 F.3d at 180.
298. Id. at 187.
299. See also Bismullah v. Gates, Nos. 06-1197, 06-1397, 2007 WL 2851702 (D.C. Cir. Oct. 3, 2007) (discussing, in the course of denying petition for rehearing by panel, the extent to which the government might withhold classified information even from detainees' attorneys).
300. Boumediene arises out of the combined appeals from the habeas decisions by Judge Green and Judge Leon, described at supra note 171.
301. A divided panel of the D.C. Circuit held with respect to both decisions that the MCA had validly abrogated habeas jurisdiction over all Guantanamo detainee claims, and thus that the detainees could continue only to challenge their CSRT determinations pursuant to the DTA. Boumediene v. Bush, 476 F.3d 981, 994 (D.C. Cir. 2007). This raised the question whether the MCA violated the Constitution's Suspension Clause. A majority of the D.C. Circuit panel ruled that it did not.
302. Id. at 991-93.
303. The essence of petitioners' claim is that DTA review of CSRT screening decisions is not adequate and that courts exercising habeas jurisdiction should conduct a de novo fact-finding process. See Brief for the Boumediene Petitioners at 26-33, Boumediene v. Bush, No. 06-1195 (U.S. Aug. 24, 2007);
304. see also Brief of Professors of Constitutional Law and Federal Jurisdiction as Amici Curiae in Support of Petitioners, Boumediene, No. 06-1195 (Aug. 24, 2007) (arguing for robust habeas review).
305. See Brief for the Boumediene Petitioners, supra note 184, at 40-43 & n.44.
306. See David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 VA. J. INT'L L. 5 (2005).
307. See Curtis A. Bradley & Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 GREEN BAG 2d 249, 250-52 (2002).
308. See Glazier, supra note 186 (describing the evolution of military commission jurisdiction and procedures). Most notably, perhaps, a detainee tried before a military commission traditionally has the right to counsel (albeit not necessarily the detainee's counsel of choice).
309. See, e.g., Appointment of a Military Commission, 7 Fed. Reg. 5103 (July 2, 1942) (appointing defense counsel in connection with military commission trial of accused German saboteurs during World War II).
310. See Glazier, supra note 186 (describing emergence of commissions as wartime fora for criminal trials).
311. See LOUIS FISHER, NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW (2d ed. 2005);
312. Michal R. Belknap, The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur Case, 89 MIL. L. REV. 59 (1980);
313. Robert E. Cushman, Ex parte Quirin et al - The Nazi Saboteur Case, 28 CORNELL L.Q. 54 (1942);
314. David Danelski, The Saboteurs' Case, 1996 J. S. CT. HIST. 61;
315. Jack Goldsmith & Cass R. Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 CONST. COMMENT. 261 (2002);
316. see also Exporte Quirin, 317 U.S. 1 (1942) (upholding use of commissions in that instance).
317. See 10 U.S.C.A. § 950v (West 2007) (listing offenses made triable by military commission according to section 3 of the Military Commissions Act of 2006);
318. Dep't of Def., Military Commission Instruction No. 2, ¶ 6 (Apr. 30, 2003) (providing the Defense Department's original list of offenses triable by commission), available at http://www.defenselink.mil/news/May2003/ d20030430milcominstno2.pdf.
319. See 10 U.S.C.A. § 950v(b)(25) (material support);
320. id. § 950v(b)(28) (conspiracy). Material support was not an offense in the military instruction pursuant to which the Defense Department first set forth the list of offenses to be tried by commission.
321. See Dep't of Def., supra note 191.
322. Four justices in Hamdan would have held that conspiracy is not an offense triable by commission; Justice Kennedy did not join Part V of the majority opinion by Justice Stevens. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2775-86 (2006).
323. See Glazier, supra note 186, at 57-66 (noting the evolution of criminal procedure in the court-martial context, in historical context with the scope of commission procedures);
324. Goldsmith & Sunstein, supra note 190.
325. For a comparative survey of the procedural features of the original Bush administration commission system and the system as it stands today as a result of the Military Commissions Act, see JENNIFER K. ELSEA, CRS REPORT FOR CONGRESS: THE MILITARY COMMISSIONS ACT OF 2006: ANALYSIS OF PROCEDURAL RULES AND COMPARISON WITH PREVIOUS DOD RULES AND THE UNIFORM CODE OF MILITARY JUSTICE (Sept. 27, 2007), available at http://www.fas.org/sgp/crs/natsec/RL33688.pdf.
326. See, e.g., Brief for Petitioner at 21-23, Hamdan, 126 S. Ct. 2749 (Jan. 6, 2006) (cataloguing departures from contemporary court-martial standards);
327. see also ELSEA, supra note 195, CRS-42 tbl.1, CRS-46 tbl.2 (comparing commission and UCMJ standards).
328. Pub. L. No. 109-366, § 3, 120 Stat. 2600, 2600-30.
329. See, e.g., 10 U.S.C.A. § 948r (West 2007) (forbidding the admission of evidence obtained via torture, but permitting the admission of evidence obtained by coercive methods short of torture in at least some circumstances).
330. Compare Dep't of Def., Military Commission Order No. 1, § 6(D)(1) (Mar. 21, 2002), available at http://www.defenselink.mil/news/ Mar2002/d20020321ord.pdf (specifying a general rule of admitting all evidence that "would have probative value to a reasonable person"),
331. with MILITARY COMMISSION RULES OF EVIDENCE, available at http://www.defenselink.mil/pubs/pdfs/ Part%20III%20-%20MCREs%20(FINAL).pdf (specifying a broad range of evidentiary rules).
332. Compare Dep't of Def., Military Commission Order No. 1, §§ 4(A)(5)(a), 5(K), 6(B)(3) (permitting removal of the defendant during presentation of evidence in order to preserve secrecy or to serve other national security interests),
333. with 10 U.S.C.A. § 949d(e) (West 2007) (permitting exclusion of the defendant only for disruptive or dangerous conduct).
334. Compare Dep't of Def., Military Commission Order No. 1, § 6(H)(4) (contemplating review by a panel appointed by the Secretary of Defense and tasked with making recommendations to that official),
335. with 10 U.S.C.A. §§ 950f, 950g (West 2007) (permitting appeal to the Court of Military Commission Review (comprised of appellate military judges) and beyond that to the D.C. Circuit Court of Appeals (and thence to the Supreme Court)).
336. The trend has begun to manifest itself overseas as well, albeit in more limited ways. See Jack Goldsmith, Comment, The Global Convergence on Terror, FIN. TIMES, Aug. 1, 2007, at 11 (discussing the extent to which European officials have begun to explore the need for new approaches to the problem of terrorism).
337. McCarthy & Velshi, supra note 85.
338. Substantive criminal law developments relating to conspiracy and material support liability already have pushed the boundaries of preventive prosecution. See supra Part III.A.1. Questions of extraterritorial jurisdiction also complicate the question of whether it is desirable to pursue the criminal model with respect to the overseas conduct of non-citizens.
339. See Chesney, supra note 13, at n.323 (noting difficulty of applying § 2339B - which prior to 2001 did not entail extraterritorial jurisdiction-to conduct of non-citizen in Afghanistan);
340. John B. Bellinger III, Legal Advisor, U.S. Dep't of State, Address to the London School of Economics: Legal Issues in the War on Terrorism (Oct. 31, 2006), available at http://www.lse.ac.uk/collections/ LSEPublicLecturesAndEvents/pdf/20061031_JohnBellinger.pdf (discussing inability to assert criminal jurisdiction over certain Guantanamo detainees due to limited state of then-applicable extraterritorial jurisdiction).
341. See Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (upholding status-based detention until end of hostilities for U.S. citizen Taliban captured in Afghanistan).
342. See, e.g., PHILIP B. HEYMANN & JULIETTE N. KAYYEM, LONG-TERM LEGAL STRATEGY PROJECT FOR PRESERVING SECURITY AND DEMOCRATIC FREEDOMS IN THE WAR ON TERRORISM 19-21, 34-50 (2004), available at http://www.mipt.org/ pdf/Long-Term-Legal-Strategy.pdf (distinguishing captures made in zones of combat operations from other captures, and offering proposals for legislative reform);
343. Kenneth Anderson, Law and Terror, POL'Y REV., Oct.-Nov. 2006, at 3, 16, 21-23;
344. Kenneth Anderson, U.S. Counterterrorism Policy and Superpower Compliance with International Human Rights Norms, 30 FORDHAM INT'L L.J. 455, 478-80 (2007);
345. Amos N. Guiora, Where Are Terrorists to Be Tried: A Comparative Analysis of Rights Granted to Suspected Terrorists, 56 CATH. U. L. REV. 805, 834-35 (2007) (proposing legislation to permit the Foreign Intelligence Surveillance Court to conduct criminal trials);
346. A. John Radsan, A Better Model for Interrogating High-Level Terrorists, 79 TEMP. L. REV. 1227, 1276-82 (2006) (discussing desirability of legislative reform);
347. Glenn M. Sulmasy, The Legal Landscape After Hamdan: The Creation of Homeland Security Courts, 13 NEW ENG. J. INT'L & COMP. L. 1 (2006);
348. Benjamin Wittes, Terrorism, the Military, and the Courts, POL'Y REV., June-July 2007, at 21, 37-41;
349. McCarthy & Velshi, supra note 85;
350. cf. John B. Bellinger III, Legal Advisor, U.S. Dep't of State, Prisoners in War: Contemporary Challenges to the Geneva Conventions, Address at the University of Oxford (Dec. 10, 2007), available at http://london.usembassy.gov/ukpapress72.html (discussing the open questions regarding substantive detention criteria and procedural safeguards relating to military detention during NIAC).
351. See Bradley & Goldsmith, supra note 25.
352. See Hamdi, 542 U.S. at 519-21 ("[W]e understand Congress' grant of authority for the use of 'necessary and appropriate force' to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.").
353. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795-96 (2006);
354. supra Part I.A.2.
355. See, e.g., Brief for the Boumediene Petitioners, supra note 184, at 39-43 (arguing for use of a "direct participation" standard to define the scope of eligibility for detention);
356. see also Goodman & Jinks, supra note 136;
357. supra note 24.
358. For a thorough overview of the direct participation concept, see the trio of reports following from expert meetings on the subject jointly convened by the International Committee of the Red Cross and the TMC Asser Institute: NILS MELZER, THIRD EXPERT MEETING ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES (2005) [hereinafter MELZER, THIRD EXPERT MEETING], available at http://www.icrc.org/Web/ eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-311205/$File/ Direct_participation_in_hostilities_2005_eng.pdf;
359. NILS MELZER, SECOND EXPERT MEETING: DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW (2004)
360. [hereinafter MEZLER, SECOND EXPERT MEETING], available at http://www.icrc.org/Web/eng/siteeng0.nsf/ htmlall/participationhostilities-ihl-311205/$File/ Direct_participation_in_hostilities_2004_eng.pdf;
361. INT'L COMM. RED CROSS, DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW (2003), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/ participationhostilities-ihl-311205/$File/ Direct%20participation%20in%20hostilities-Sept%202003.pdf.
362. In an international armed conflict, for example, the Geneva Conventions plainly contemplate security detention of civilians who cannot necessarily be targeted. See supra Part I.A.2.
363. See Curtis A. Bradley & Jack L. Goldsmith, Rejoinder: The War on Terrorism: International Law, Clear Statement Requirements, and Constitutional Design, 118 HARV. L. REV. 2683, 2688-89 (2005). This in fact is the U.S. government's position. It maintains that the members of nonstate armed groups such as al Qaeda are combatants rather than civilians, and thus that the direct participation question is not relevant.
364. See, e.g., Brief for the Respondents at 64-66, Boumediene v. Bush, No. 06-1195 (U.S. Oct. 9, 2007);
365. cf. MELZER, THIRD EXPERT MEETING, supra note 211, at 41 (stating that "IHL applicability] in [non-international armed conflict with private armed groups] remains unclear as to whether members of organized armed groups are 'civilians'-and thus subject to direct attack only for such time as they directly participated in the hostilities-or whether they can be directly attacked according to the same principles as members of state armed forces, that is to say, irrespective of their individual direct participation in hostilities").
366. See sources cited supra note 211.
367. See, e.g., HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov't of Israel [2005], available at http://elyonl.court.gov.il/Files_ENG/02/ 690/007/a34/02007690.a34.pdf (broadly construing the temporal element of direct participation in the context of members of terrorist organizations);
368. MELZER, THIRD EXPERT MEETING, supra note 211, at 59-68 (discussing the temporal component of the direct participation inquiry).
369. See, e.g., Parks, supra note 70, at 118-20.
370. See MELZER, SECOND EXPERT MEETING, supra note 211, at 20-21 (reporting conflicting viewpoints);
371. MELZER, THIRD EXPERT MEETING, supra note 211, at 44, 48-51, 53-58 (same).
372. See, e.g., A.P.V. ROGERS, LAW ON THE BATTLEFIELD 11-12 (2d ed. 2004).
373. The petitioners in Boumediene, for example, acknowledge that a direct participation approach would permit detention of both al Qaeda leadership figures such as Osama bin Laden and perhaps also those persons who constitute members subject to al Qaeda's direction and control. Brief for the Boumediene Petitioners, supra note 184, at 41.
374. Concerning al-Marri, see supra Part III.B.3.
375. See also MELZER, SECOND EXPERT MEETING, supra note 211, at 20-21 (reporting conflicting viewpoints);
376. MELZER, THIRD EXPERT MEETING, supra note 211, at 44, 48-51, 53-58 (same). Ryan Goodman and Derek Jinks appear to take an intermediate position. They argue that membership simpliciter does not suffice to establish direct participation, and that one must go further to ask what role the individual plays within the entity.
377. See Goodman & Jinks, supra note 136, at 2657. On their analysis, a member responsible for "local intelligence, intermediate logistics, recruiting, [and] training" would not be engaged in direct participation.
378. Id.
379. (quoting W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, ARMY LAW., Dec. 1989, at 4, 9 app. C). This implies that members whose roles more directly pertain to violence - including commanders and operators - could be viewed as direct participants on the basis of that status.
380. We note, however, that Goodman and Jinks, who view the "direct participation" to be a relatively demanding standard, also think that the "dirty bomb plot" allegations against Jose Padilla sufficed to trigger the direct participation standard. See Goodman and Jinks, supra note 136, at 2658 n.32.
381. A military judge on the U.S. military commission recently ruled that Salim Hamdan, Bin Laden's driver and sometimes-bodyguard who swore bayat to Bin Laden and who sometimes delivered weapons to the Taliban and other jihadist fighters at Bin Laden's request, "directly participated" in hostilities against the United States for purposes of the Military Commission Act of 2006. See United States v. Hamdan (Dec. 19, 2007), available at http://www.defenselink.mil/news/Dec2007/Hamdan- Jurisdiction%20After%20Reconsideration%20Ruling.pdf (order denying motion to dismiss for lack of jurisdiction on reconsideration).
382. Some might assume that if the government chose not to continue to use military detention because of unduly enhanced procedural safeguards, it would instead revert to a pure criminal-prosecution model. But the consequences may be more complex and less compatible with human rights concerns, as illustrated by the emergence in the 1990s of the rendition program as a mechanism to incapacitate terrorists who could not be prosecuted in the United States.
383. Reformers also must grapple with the overarching question of whether to apply a single detention-screening model in all circumstances, or instead to adopt a more nuanced approach in which detention criteria and safeguards may vary depending on the locus and circumstances of capture. See HEYMANN & KAYYEM, supra note 206, at 20-21, 44-45 (advocating a nuanced approach designed not to impose undue restrictions on captures made in zones of combat operations).
384. For an outline of detention-screening procedures employed in Iraq in 2005, as a contrast to the DTA-CSRT framework, see U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Second Periodic Report of the United States of America, annex I, pt. 2, §II, U.N. Doc. CAT/C/48/Add.3 (June 29, 2005), available at http://www.state.gov/g/drl/rls/45738.htm#additional (describing internal military review process).
385. See supra Part I.B.
386. See id.
387. See supra Part III.B.4.
388. See supra Part I.B.
389. Bismullah v. Gates, 501 F.3d 178, 181 (D.C. Cir. 2007) (describing CSRT procedures).
390. See supra Part III.B.4.
391. Indeed, questions about the scope of disclosure obligations vis-à-vis information held by the military or the Intelligence Community have received relatively little attention even in the context of criminal prosecutions in terrorism cases. That may change soon, however, in light of the ongoing effort by one recently convicted defendant to obtain a new trial on the ground that the government failed to disclose Brady material in the form of warrantless NSA wiretaps allegedly conducted under the rubric of the Terrorist Surveillance Program. See Jerry Markon, Government Secrecy May Lead to New Trial in Va. Terror Case, WASH. POST, Nov. 21, 2007, at A8.
392. See, e.g., United States v. Marzook, 412 F. Supp. 2d 913, 919 (N.D. Ill. 2006) (closing court to public during suppression hearing involving testimony from undercover Israeli agents).
393. See, e.g., Brief Amicus Curiae of Retired Military Officers in Support of Petitioners at 10-11, Boumediene v. Bush, Nos. 06-1195 & 06-1196 (U.S. Aug. 24, 2007) (alleging command influence).
394. See supra Part III.B.4.
395. See, e.g., William Glaberson, Military Insider Becomes Critic of Hearings at Guantanamo, N.Y. TIMES, July 23, 2007, at Al (describing claims of pressure made by former tribunal officer).
396. See, e.g., Administrative Review Board Summary: ARB2, http://www.defenselink.mil/news/arb2.pdf (reporting determinations between summer 2006 and winter 2007 to transfer fifty-five detainees out of Guantanamo). In addition to the ARB process, it is possible in the current system to request a second CSRT review based on new evidence. A May 2007 instruction promulgated by the Defense Department confirms that a detainee, or person lawfully acting on behalf of a detainee, may seek a new CSRT proceeding on the basis of newly-discovered evidence pertaining to "enemy combatant" status. Memorandum from Frank Sweigart, Dir. of the Office for the Admin. Review of the Det. of Enemy Combatants, OARDEC Instruction 5421.1: Procedure for Review of "New Evidence" Relating to Enemy Combatant (EC) Status (May 7, 2007), available at http://www.defenselink.mil/news/May2007/ New%20Evidence%20Instruction.pdf.
397. Detainees have questioned the extent to which this right is honored in practice. See Brief for Boumediene Petitioners, supra note 184, at 5 (alleging that tribunals "in practice" denied detainees the ability to introduce reasonably available evidence).
398. This characterization may be open to dispute. See supra note 156.