Electronic copy available at: http://ssrn.com/abstract=1124626
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY
Copyright © 2008 by Northwestern University, School of Law
Vol. 97, No. 4
Printed in U.S.A.
GUANTANAMO AND BEYOND: DANGERS
OF RIGGING THE RULES
BRIAN J. FOLEY∗
Supporters of the U.S. antiterrorism policy of indefinitely imprisoning
“enemy combatants” captured in the “War on Terrorism” claim that it
gives the Executive needed flexibility for incapacitating potentially
dangerous terrorists and interrogating them with harsh methods to uncover
plans for terrorist attacks. The policy has been widely criticized from its
inception, mostly on the grounds that it is illegal and immoral. Bracketing
these critiques, this Article argues that this policy is ineffective. The policy
impedes the government’s ability to conduct the investigations necessary to
prevent terrorist attacks because it fosters indiscriminate dragnets,
imprisonment, and coercive interrogations of people who are not terrorists.
Given that innocent people are likely to confess falsely when subjected to
coercion, the policy risks proliferating false confessions and false leads that
inundate and mislead investigators. Unfortunately, the U.S. government
has failed to understand this link among detentions, interrogations, and
investigations, and the need for reliable judicial process to sort terrorists
from non-terrorists. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the
Supreme Court ruled that prisoners had only limited rights to challenge
that they were “enemy combatants,” and the Bush administration used that
ruling to create the Combatant Status Review Tribunal (“CSRT”). The
CSRT, however, is rigged to rubberstamp the government’s case. The
CSRT applies a broad definition of “enemy combatant” that inevitably
ensnares innocent people; applies a presumption of guilt; has no juries;
disables prisoners from gathering exculpatory evidence; prohibits prisoners
∗Visiting Associate Professor of Law, Drexel University College of Law (2007-2008);
Associate Professor of Law, Florida Coastal School of Law. J.D., University of California,
Berkeley. A.B., Dartmouth College. I thank Drexel University, where I presented these
ideas at a symposium marking the fifth anniversary of the opening of Guantanamo Bay on
January 12, 2007; Bill Fisher, who interviewed me about Guantanamo for InterPress Service
in July, 2005; and Bernard Hibbitts, who invited me to write about Guantanamo for JURIST
in Fall, 2005, where I first developed these ideas in a series of commentaries. I thank Roger
Clark, Joe Margulies, M.G. Piety, Chris Roederer, Brian Slocum, and Helen Struck for
reviewing earlier drafts, and Jeremy Salter for excellent research assistance. I thank Dean
Peter Goplerud for the research grant that helped me write.
Electronic copy available at: http://ssrn.com/abstract=1124626
BRIAN J. FOLEY [Vol. 97
from having lawyers; and relies on hearsay, coerced confessions, and
secret evidence to reach its judgment that a prisoner should be detained
indefinitely. Also rigged are the “military commissions” created by the
administration to try “enemy combatants” for terrorism and war crimes.
Military commissions may rely on coerced testimony and hearsay and use
soldiers for jurors. But, unlike the CSRT, military commissions can impose
death sentences, which cause innocent prisoners facing what they believe is
certain execution to “cooperate” by confessing or falsely accusing
others. Rigged rules also undermine investigative abilities. Knowing they
can win trials by simply coercing confessions and relying on hearsay,
investigators may feel little need to risk their lives infiltrating terrorist
groups and developing sources. Such skimping can cause investigators’
skills to atrophy and prevent their building an accurate database over time.
This Article argues that U.S. policymakers should forge an effective
detention and interrogation policy that recognizes the link to accurate
investigations and suggests some guidelines for creating a tribunal
designed to reach accurate conclusions about whether a prisoner is even a
terrorist at all.
Why are U.S. officials imprisoning and interrogating people about
terrorism who are unlikely to know anything about terrorism? Why have
U.S. officials created an entirely new justice system, which is now in effect
at the prison for “enemy combatants” at the U.S. Naval Base at
Guantanamo Bay, Cuba, rigged to perpetuate this practice? These
questions are rhetorical, to point out what at bottom is occurring at
Guantanamo.1 This Article will show that this new justice system2 does not
work to reduce the risk of terrorist attacks, which is presumably the purpose
of Guantanamo and the “War on Terrorism.” Instead, it does just the
1See Steven N. Kleinman, KUBARK Counterintelligence Interrogation Review:
Observations of an Interrogator—Lessons Learned and Avenues for Further Research, in
NATIONAL DEFENSE INTELLIGENCE COLLEGE, INTELLIGENCE SCIENCE BOARD, EDUCING
INFORMATION: INTERROGATION: SCIENCE AND ART—FOUNDATIONS FOR THE FUTURE 107
(2006) [hereinafter EDUCING INFORMATION].
2See John T. Parry, Terrorism and the New Criminal Process, 15 WM. & MARY BILL
RTS. J. 765, 766 (2007) (arguing that “the ‘war on terror’ has accelerated the development of
a new criminal process and that this new process has increasingly displaced traditional
methods of investigating, prosecuting, and punishing people who have engaged in conduct
that is subject to criminal penalties—whether or not that conduct is considered ‘terrorism’”).
GUANTANAMO AND BEYOND 1011
Rigging the rules to make it easier for tribunals at Guantanamo to
conclude that people are terrorists paradoxically makes it harder to
investigate terrorism and capture terrorists. That is, rigging the rules in
favor of the hunters actually helps the hunted avoid capture. The reason is
straightforward: people commit terrorist acts. In order to prevent a terrorist
attack, the people planning it must be identified and interdicted. A system
that fails to identify these people fails to prevent terrorist attacks.3
But what have gone unrecognized are the dangers that come from
undisciplined information gathering, that is, from wrongly identifying
people as terrorists (“false positives”). Fundamentally, identifying the
wrong people can lead investigators away from the right people and make it
more likely that any actual terrorists will be able to carry out their plans.4
This Article directly challenges the effectiveness of the Guantanamo
policy for thwarting terrorist attacks by challenging the general proposition
that loosening judicial standards for detaining and convicting suspected
terrorists helps prevent terrorism. Part II of the Article sets forth the
necessary background showing how the rules at Guantanamo are rigged. I
3See Memorandum from Alberto R. Gonzales to the President of the United States,
Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with
Al Qaeda and the Taliban 2 (Jan. 25, 2002) [hereinafter Gonzales Memo] (“As you have
said, the war against terrorism is a new kind of war. It is not the traditional clash between
nations adhering to the laws of war that formed the backdrop for GPW [Geneva Convention
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.
135]. The nature of the new war places a high premium on other factors, such as the ability
to quickly obtain information from captured terrorists and their sponsors in order to avoid
further atrocities against American civilians, and the need to try terrorists for war crimes
such as wantonly killing civilians.”). This Memorandum was written at the time
Guantanamo opened as a prison. See also John M. McCain, Respecting the Geneva
Conventions, in TORTURE: DOES IT MAKE US SAFER? IS IT EVER OK?—A HUMAN RIGHTS
PERSPECTIVE 156-57 (Kenneth Roth, Minky Worden & Amy D. Bernstein eds., 2005)
[hereinafter TORTURE: DOES IT MAKE US SAFER?] (arguing the United States “face[s] a new
enemy in the global war on terror, and much of our ability to disrupt attacks and destroy
terrorist cells depends on the quality of the intelligence we gather from detainees”).
Gathering information is the raison d’etre of Guantanamo. JOSEPH MARGULIES,
GUANTANAMO AND THE ABUSE OF PRESIDENTIAL POWER 39 (2006).
4I have raised these points in op eds. See Guantanamo Process as a Public Danger,
JURIST—FORUM, Oct. 11, 2005, available at http://jurist.law.pitt.edu/forumy/2005/10/
guantanamo-process-as-public-danger.php; see also Brian J. Foley, Op-Ed., Policy in
Guantanamo Won’t Thwart Terrorism, PHILA. INQUIRER, July 23, 2007, at A13 (criticizing
proposals to close Guantanamo as ineffective based on their failure to revamp the tribunals
to limit the dangers they cause to investigations). There has been little discussion of the
dangers of false positives. Instead, focus has been on the dangers of false negatives—where
the government fails to identify a terrorist as a terrorist. The Guantanamo system is built
around limiting false negatives by erring on the side of increasing false positives. The
burden is seen as falling on the innocent people detained. John Ip, Comparative
Perspectives on the Detention of Terrorist Suspects, 16 TRANSNAT’L L. & CONTEMP. PROBS.
773, 869 (2007).
BRIAN J. FOLEY [Vol. 97
examine the rules of the Combatant Status Review Tribunal (“CSRT”),
which purportedly provides a forum for prisoners to challenge the
government’s case that they are “enemy combatants” (a term that, for the
purposes of this Article, I will use interchangeably with “terrorist”5), to
show that the CSRT cannot be relied upon for accurate findings. Instead, it
can be relied on only to ensure that anyone detained will remain detained. I
also explain how the U.S. Supreme Court, in Hamdi v. Rumsfeld,6
unfortunately helped lay the groundwork for the CSRT’s rigged rules. I
examine the rigged rules for the Administrative Review Board (“ARB”),
which is set up to review annually a prisoner’s dangerousness, and the rules
for the military commissions, which the Bush Administration has created to
make it easy to convict enemy combatants for particular war- and terrorism-
Part III is the heart of the Article. I show how these rigged rules are
dangerous because they negatively impact the accuracy of terrorism
investigations. The CSRT and military commissions actually foster the
gathering of false confessions and other false information from suspected
prisoners, which can mislead investigators. Part of the problem is the
aforementioned fact that coercive interrogation techniques are applied to
prisoners who lack relevant knowledge of terrorism. There are other
problems as well. A system designed to help the government win its cases
can lead investigators to apply less rigor than they would need to win in a
regular court system. Consequently, they learn less about the terrorist
networks they must disrupt.
Part IV proposes that new rules dedicated to reaching accurate
determinations of terrorist status and individualized guilt for terrorist crimes
be designed and implemented as a productive tool in the War on Terrorism.
I make some suggestions for the form some of those rules should take.
B. BACKGROUND: WRONG DEBATE, WRONG PREMISES—NATIONAL
SECURITY AND CIVIL LIBERTIES ARE NOT DICHOTOMOUS
The dangers I discuss were not exposed earlier because the debate
about Guantanamo has been framed by the larger, venerable debate that
sees the relationship between national security and civil liberties as
dichotomous. Indeed, the U.S. Supreme Court in Hamdi consciously tipped
this scale in a way it assumed would favor national security.7
5I use the term interchangeably because Guantanamo was designed as an interrogation
chamber to extract information that could thwart terrorist attacks; U.S. officials believed that
the U.S. Constitution did not apply there and that they could use coercive interrogation
techniques. See Gonzales Memo, supra note 3.
6542 U.S. 507 (2004).
7See discussion infra Part II.A.1.
GUANTANAMO AND BEYOND 1013
One way of describing the logic of Guantanamo is that it reverses the
longstanding view that it is better to let ninety-nine guilty men go free than
it is to convict one innocent man.8 The new thinking is to “play it safe” by
casting a wide net that might, regrettably, ensnare innocent people along
with legitimate terrorists. The CSRT helps ensure, however, that all of the
people will remain ensnared. In this new thinking, false negatives are far
more dangerous than false positives, and there is really no cost for
imprisoning a false positive other than that borne by the prisoner.9 This
sentiment was expressed recently by Representative Dan Rohrabacher (R-
CA) during a Congressional hearing into another aspect of the U.S.
detention policy, “extraordinary rendition,” which entails kidnapping
suspects and rendering them to foreign countries and secret prisons for the
purpose of coercive interrogation: “[I]f 10 . . . people suffer . . . in order for
us to take 90 other people off the street who are intent and involved in plans
that would slaughter tens of thousands of our citizens, I’m afraid that’s the
price we pay in a real world.”10
The dichotomous framing of civil liberties and national security is, I
believe, why the main questions about Guantanamo until now have
concerned the legality of the detentions,11 the legality of the CSRT,12 the
8This calculus has been applied with various numbers. For a sweeping look at what that
number (“n”) has been set at by various courts, jurists, and thinkers, see Alexander Volokh,
n Guilty Men, 146 U. PA. L. REV. 173 (1997). I have chosen to use the ratio of one (n) out of
100 because it matches the level of the probability that the Bush Administration reportedly
has used in creating its policies after 9/11. According to journalist Ron Suskind, the Bush
Administration operated under the view that if there was at least a “one percent chance” that,
for example, a terrorist attack might occur or that Saddam Hussein had weapons of mass
destruction in Iraq, then the United States must treat that one percent as if it were a certainty
and act accordingly, which of course means ignoring or contravening the remaining ninety-
nine percent of relevant information. See RON SUSKIND, THE ONE PERCENT DOCTRINE: DEEP
INSIDE AMERICA’S PURSUIT OF ITS ENEMIES SINCE 9/11 62, 79, 123-24, 213-16 (2006)
(describing this rule as the “Cheney Doctrine”).
9See Ip, supra note 4, at 869.
10House of Representatives, Committee on Foreign Affairs, Subcommittee on
International Organizations, Human Rights, and Oversight, Subcommittee on Europe, Apr.
17, 2007. These comments do not appear in the transcript, but Rep. Rohrabacher can be seen
making them on a C-SPAN2 video. Rep. Rohrabacher: “I Hope It’s Your Families That
Suffer” from a Terrorist Attack, http://thinkprogress.org/2007/04/24/rohrabacher-terrorists
(last visited Sept. 22, 2007).
11See, e.g., Hamdi, 542 U.S. at 533-35, 538-39 (holding that U.S. citizens may be
detained indefinitely as “enemy combatants” but may challenge this detention on habeas
corpus or in specially designed military hearings); Rasul v. Bush, 542 U.S. 466, 483-85
(2004) (holding that federal courts have jurisdiction to hear habeas corpus petitions filed
under 28 U.S.C. § 2241 by non-citizens imprisoned by military as “enemy combatants”);
Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons Detained
Without Trial, 44 HARV. INT’L L.J. 503 (2003).
BRIAN J. FOLEY [Vol. 97
legality of the military commissions,13 and the legality and morality of
torture and coercive interrogation.14 This frame is why the dominant
12See, e.g., Boumediene v. Bush, 476 F.3d 981, 1005-06 (D.C. Cir. 2007) (Rogers, J.,
dissenting) (asserting that the CSRTs and available limited review of CSRT proceedings by
circuit court fail to accord the level of process that habeas corpus requires for testing the
factual accuracy of detention by Executive), cert. denied, 127 S. Ct. 1478 (2007), cert.
granted, 127 S. Ct. 3078 (2007); MARGULIES, supra note 3, at 159-70.
13Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006)
(“MCA”). The MCA was upheld as constitutional in Boumediene. Congress passed the
MCA in October 2006, in response to the Supreme Court’s striking down an earlier
incarnation of the military commission set forth in a Presidential Order. See Hamdan v.
Rumsfeld, 126 S. Ct. 2749, 2792-93, 2795-99 (2006) (finding military commissions violate
the Uniform Code of Military Justice and the Third Geneva Convention). The legality of
using these commissions has been the subject of much scholarly commentary. See, e.g.,
Ingrid Brunk-Weurth, The President’s Power to Detain “Enemy Combatants”: Modern
Lessons from Mr. Madison’s Forgotten War, 98 NW. U. L. REV. 1567, 1615 (2004); Laura A.
Dickinson, Using Legal Process to Fight Terrorism: Detentions, Military Commissions,
International Tribunals, and the Rule of Law, 75 S. CAL. L. REV. 1407, 1412-35 (2002); Neal
Katyal & Laurence Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111
YALE L.J. 1259, 1286-87 (2002).
14See, e.g., ALAN M. DERSHOWITZ, WHY TERRORISM WORKS: UNDERSTANDING THE
THREAT, RESPONDING TO THE CHALLENGE 131-63 (2002) (advocating legalizing torture in
extreme situations and requiring “torture warrants” for judicial approval); David Luban,
Liberalism, Torture, and the Ticking Bomb, 91 VA. L. REV. 1425 (2005); Jeff McMahan,
Torture, Morality, and Law, 37 CASE W. RES. J. INT’L L. 241 (2005); see also TORTURE: A
COLLECTION (Sanford Levinson ed., 2004) [hereinafter TORTURE] (discussing the legality and
morality of torture).
This Article uses “torture” in its general sense. See OXFORD ENGLISH DICTIONARY (2d ed.
1989) (defining the noun torture as “1. The infliction of severe bodily pain, as punishment or
a means of persuasion; spec. judicial torture, inflicted by a judicial or quasi-judicial
authority, for the purpose of forcing an accused or suspected person to confess, or an
unwilling witness to give evidence or information . . . .”).
There is a distinction between “torture” and “coercive interrogation” in that some
practices of coercive interrogation might not be painful enough to amount to torture. Where
to draw the line is unclear, and it is beyond the scope of this Article to engage in what Sandy
Levinson calls the “grim and unattractive discussions about what methods of interrogation,
by stopping ‘short’ of banned practices, are therefore defined as acceptable.” Sanford
Levinson, Contemplating Torture: An Introduction, in TORTURE 30 [hereinafter Levinson,
Contemplating Torture]. There has, of course, been significant discussion about whether
particular coercive interrogation techniques used by the United States at Guantanamo Bay
and other prisons meet the legal definition of “torture” or are otherwise illegal. See, e.g.,
Jordan J. Paust, Executive Plans and Authorizations to Violate International Law
Concerning Treatment and Interrogation of Detainees, 43 COLUM. J. TRANSNAT’L L. 811,
838-62 (2005) (describing U.S. interrogation tactics at Guantanamo and Iraq as violating
U.S. and international law).
Officials have tried to justify some methods by calling them “torture lite.” See Seth F.
Kreimer, “Torture Lite,” “Full Bodied” Torture, and the Insulation of Legal Conscience, 1
J. NAT’L SECURITY L. & POL’Y 187, 188 (2005); see also Mark Bowden, The Dark Art of
Interrogation, 292 ATLANTIC MONTHLY 51 (2003) (describing various tactics and
concluding, “Although excruciating for the victim, these tactics generally leave no
GUANTANAMO AND BEYOND 1015
critiques have focused on how the policy discounts civil liberties—these
critiques argue that the policy is illegal, unfair, immoral, and fails to reflect
“American values”15 by punishing innocent people and denying them any
say in the matter. To a lesser extent, critiques have been based on national
security considerations, suggesting that what appears to be American
hypocrisy regarding justice and human rights may create a disincentive for
other countries to assist the United States as the leader in the “War on
Terrorism,”16 that the unfair policy can motivate enemies and be used as
permanent marks and do no lasting physical harm”). But as Jordan Paust points out in
discussing the “torture memos” by White House lawyers, which sought to make such
distinctions, “Of course, the point is hardly relevant when Geneva and human rights law
expressly prohibit not merely ‘torture,’ but also ‘violence,’ threats of violence, ‘cruel’
treatment, ‘physical and moral coercion . . . to obtain information,’ ‘physical suffering,’
‘inhuman’ treatment, ‘degrading’ treatment, ‘humiliating’ treatment, and ‘intimidation’
during interrogation.” Paust, supra, at 835.
Such efforts to distinguish coercive interrogation methods from torture are nothing new
and have long been a part of American law enforcement. See Jerome H. Skolnick, American
Interrogation: From Torture to Trickery, in TORTURE, supra, at 113.
15See, e.g., DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL
FREEDOMS IN THE WAR ON TERRORISM 39-46 (2003); M. CHERIF BASSIOUNI, Great Nations
and Torture, in THE TORTURE DEBATE IN AMERICA 260 (Karen J. Greenberg ed., 2006)
[hereinafter TORTURE DEBATE] (“The difference between a great nation and a mighty nation
is not measured by its military wherewithal or its ability to exercise force, but by its
adherence to higher values and principles of law. This is what the United States is based on,
and this is what has made it a great nation.”); Jennifer Moore, Practicing What We Preach:
Humane Treatment for Detainees in the War on Terror, 34 DENV. J. INT’L L. & POL’Y 33, 61
(2006) (“If we abandon the rule of law in the ‘war on terror,’ we risk becoming what we
16See, e.g., MARGULIES, supra note 3, at 226-28, 236; Kenneth Roth, Justifying Torture,
in TORTURE: DOES IT MAKE US SAFER?, supra note 3, at 200-01. For the general proposition
that the United States’s adherence to internationally accepted norms will help the war on
terror in this way, see National Commission on Terrorist Attacks upon the United States, The
9/11 Commission Report: An Executive Summary (2004), available at 2004 WL 1846272, at
15 (part of proposed counterterrorism policy is that the United States should “stand as an
example of moral leadership in the world”). See also JOSEPH S. NYE, THE PARADOX OF
AMERICAN POWER: WHY THE WORLD’S ONLY SUPERPOWER CAN’T GO IT ALONE 9, 67-75,
147-53 (2002) (U.S. “soft power” in this regard).
Senator John McCain and others have argued that under the principle of reciprocity, U.S.
mistreatment of prisoners can lead enemies to mistreat U.S. soldiers if they are captured.
McCain, supra note 3, at 156. The converse has been applied tendentiously by U.S.
government lawyers in arguing for torture: “The moral grounding for the position of the
government’s lawyers [in creating Guantanamo policies] was the paramount value of
protecting the United States without being constrained by the rules that the enemy had
flouted.” Noah Feldman, Ugly Americans, in TORTURE DEBATE, supra note 15, at 269; see
also Robert Coulam, The Costs and Benefits of Interrogation in the Struggle Against
Terrorism, in EDUCING INFORMATION, supra note 1, at 7.
Only a handful of commentators have meaningfully questioned the effectiveness of
torture and coercive interrogation. See Philip N.S. Rumney, Is Coercive Interrogation of
Terrorist Suspects Effective? A Response to Bagaric and Clarke, 40 U.S.F. L. REV. 479, 480
BRIAN J. FOLEY [Vol. 97
anti-U.S. propaganda,17 and that other countries might use the policy to
justify treating any captured U.S. soldiers similarly.18
But the effectiveness of the new justice system in preventing terrorist
attacks has not been challenged outright. The dichotomous framing
prevents such a challenge because it elides national security justifications
with effectiveness.19 (This elision is promoted by official secrecy, which
makes it hard to question the effectiveness of government actions taken in
the name of national security.) Indeed, a person approaching this subject
for the first time might conclude either that many critics have tacitly
accepted that the new system is actually effective but distasteful or that the
fact that the system is ineffective is a point so obvious that it need not be
made. The former is probably the more likely conclusion because
ineffectiveness is the most powerful way to criticize a policy and can cut
through ideological intransigence and political posturing.
In any event, the view that there is a tension between national security
and civil liberties cannot withstand scrutiny, at least at Guantanamo. This
view is underwritten by a set of incorrect assumptions that have not been
fully articulated, beginning with the assumption that limiting civil rights can
increase security by giving the government more power in what is seen as a
zero-sum game. That is why the purported benefit of this new justice
system is that it gives officials broad discretion and flexibility to deal with
terrorism.20 But going deeper, the assumptions are: that the Executive well
(2006) (“Only very limited attention has been given to the issue of effectiveness [of coercive
interrogation techniques].”). For a brief discussion of this issue, see infra Part IV.B.
17MARGULIES, supra note 3, at 226-28, 236; Ip, supra note 4, at 869-70 (noting this
phenomenon in Northern Ireland after Great Britain enacted a broad detention policy in
response to IRA terrorism and in the Muslim world as a result of Guantanamo).
18See McCain, supra note 3 (asserting that United States actions at Abu Ghraib have
increased risk to American soldiers). Notably, Alberto Gonzales considered and rejected
some of these objections in his Memorandum for the President and concluded that the
Geneva Conventions did not apply to al Qaeda and Taliban prisoners. See Gonzales Memo,
supra note 3. For a recitation of all of what I call the standard objections to Guantanamo by
a politician suggesting a putative change to the policy (that essentially amounts to merely
moving the prisoners to a different prison), see Press Release, Office of Senator Dianne
Feinstein, Senator Feinstein Introduces Legislation [S.B.1249] to Close Detention Facility at
Guantanamo Bay, Cuba: Bill Requires Transfer of Guantanamo Bay Detainees to Other
Detention Facilities (Apr. 30, 2007), available at http://www.feinstein.senate.gov/
a14d-a6ef-6226-c216f745c0d5 [hereinafter Feinstein Press Release].
19Overall, courts generally have deferred to the Executive when it has claimed a national
security justification. Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security
Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 697-703
(2004). Congress has done the same. Ip, supra note 4, at 864-65.
20See John Ashcroft, Department of Justice Press Conference (Nov. 14, 2001), available
at http://jurist.law.pitt.edu/terrorism/terrorismmilash.htm (addressing military tribunals for
GUANTANAMO AND BEYOND 1017
knows who is and who is not a terrorist; that judicial participation would
only impede the Executive in its efforts to neutralize these enemies by tying
officials in bureaucratic (judicial) red tape; and that judicial interference,
with its attention to procedural and evidentiary rules designed to protect
defendants’ rights, would risk erroneously exonerating people whom the
Executive has identified as planning terrorist attacks. Such thinking is what
underlies shibboleths such as “the Constitution is not a suicide pact.”21
The Executive, however, is not all-knowing and never has been.
Mistakes in identifying people as terrorists have been made in the “War on
Terrorism,” and at Guantanamo in particular.22 Normal judicial procedures
terrorists); Military Commissions: Hearing Before the S. Comm. on Armed Services, 107th
Cong. 1 (2001), available at http://www.senate.gov/~armed_services/statemnt/2001/011212
wolf&rums.pdf (statement of Donald H. Rumsfeld, Secretary of Defense, and Paul D.
Wolfowitz, Deputy Secretary of Defense arguing that it was “important to give the
[P]resident of the United States the maximum flexibility consistent with his constitutional
authority”); see also Parry, supra note 2, at 792.
21See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (“[W]hile the
Constitution protects against invasions of individual rights, it is not a suicide pact.”); The
Constitution Is Not a Suicide Pact, Wikipedia, http://en.wikipedia.org/wiki/The_
Constitution_is_not_a_suicide_pact (last visited June 17, 2007) (discussing the genesis and
use of this phrase in U.S. political discourse).
22See Mark Denbeaux & Joshua Denbeaux, No-Hearing Hearing—CSRT: The Modern
Habeas Corpus? An Analysis of the Proceedings of the Government’s Combatant Status
Review Tribunals at Guantanamo 4 (Oct. 17, 2006), available at http://law.shu.edu/news/
final_no_hearing_hearings_report.pdf [hereinafter Denbeaux & Denbeaux, No-Hearing
Hearing]; Mark Denbeaux & Joshua Denbeaux, Report on Guantanamo Detainees: A
Profile of 517 Detainees Through Analysis of Department of Defense Data 2 (Feb. 8, 2006),
available at http://law.shu.edu/aaafinal.pdf [hereinafter Denbeaux & Denbeaux, Profile of
517 Detainees]. These studies reveal that the possibility of mistaken detention at
Guantanamo is extremely high. Only five percent of the prisoners at Guantanamo were
initially captured by U.S. forces. Id. at 2. Many of the remainder were captured by warring
tribes motivated by bounties offered by the United States for al Qaeda and Taliban members.
Id. at 3. Only eight percent were alleged to be connected to al Qaeda. Id. at 2. The
imprisonment as enemy combatants was justified by, inter alia, finding that prisoners carried
Kalashnikov rifles, wore olive drab clothing, had Casio watches, or had stayed in
“guesthouses”—all of which were commonplace in Afghanistan. Id. at 2, 17, 19, 20; see
also Ip, supra note 4, at 846-47 (contrasting the information these studies revealed with the
“air of infallibility” surrounding the Bush Administration’s early statements about prisoners
at Guantanamo, including the famous depiction of the prisoners as “the worst of the worst”
who would “gnaw hydraulic lines in the back of a C-17 [transport plane carrying them to
Guantanamo] to bring it down”).
The Pentagon has recently tried to counteract this widespread view of mistaken
detentions with a report commissioned from The Combating Terrorism Center at the United
States Military Academy at West Point. William Glaberson, Pentagon Study Sees Threat in
Guantanamo Detainees, N.Y. TIMES, July 26, 2007, at A16. However, the Pentagon’s efforts
seem unconvincing in light of the vast evidence it is trying to contradict and its self-serving
nature; the efforts seem too little and too late. See id. Journalist Andy Worthington
critiqued the study, arguing,
BRIAN J. FOLEY [Vol. 97
can help prevent such mistakes. The process at Guantanamo is meant to
make it practically impossible for anyone caught in the net, by mistake or
not, to get out. The need for the accuracy that courts contribute should,
however, be recognized as more compelling when it comes to preventing
terrorism than when it comes to convicting and punishing people for crimes
that have already taken place. The danger of identifying the wrong people
is greater when hundreds if not thousands of lives are at risk from terrorism,
as I will show.
C. BACKGROUND: TWO ASSUMPTIONS; AND A BRACKETED QUESTION
In this Article I make two assumptions. The first is that this new
justice system goes “beyond Guantanamo” as my title indicates.23 That is,
even if Guantanamo is ultimately shut down, as two pending Senate bills
propose, there is no indication that such a detention policy and associated
tribunals with rigged rules will not merely be implemented elsewhere.24
[o]n the one hand, the administration commissions its boys to come up with a report stating that
73 percent of the detainees were a “demonstrated threat,” and 95 percent were a “potential
threat,” and on the other hand the administration itself has released, or cleared for release, 75
percent of the detainees because they were “not or no longer a threat” (and that’s not counting
the 201 detainees who were released before the tribunal process began). How are we supposed
to take these clowns seriously?
Andy Worthington, West Point PR: Why the Pentagon’s Gitmo Study Is a Joke,
COUNTERPUNCH, July 26, 2007, available at http://www.counterpunch.org/worthington
07262007.html. Worthington is the author of THE GUANTANAMO FILES: THE STORIES OF THE
759 DETAINEES IN AMERICA’S ILLEGAL PRISON (2007).
There was also a roundup of non-citizens inside the United States in the days and weeks
after the 9/11 attacks, which resulted in 738 non-citizens being detained until August 2002.
None was charged with a terrorism crime “and virtually all were cleared of any connection
to terrorism by the FBI.” COLE, supra note 15, at 30.
23See generally Parry, supra note 2. U.S. detentions have not been limited
geographically to Guantanamo. Since September 11, 2001, the United States has imprisoned
thousands of al Qaeda suspects in Afghanistan, the Indian Ocean atoll Diego Garcia, and
Charleston, South Carolina without charge or prisoner-of-war status. Bowden, supra note
14, at 56; see also COLE, supra note 15, at 30 (noting that the United States arrested and
detained hundreds of non-citizens after 9/11).
24There are two bills pending as of this writing. S.B. 1249, proposed by Senator Dianne
Feinstein (D-CA), would require trial in regular U.S. courts (Article III or regular military
court), an international tribunal under U.N. authority, or trial in another country “provided
that such country provides adequate assurances that the individual will not be subject to
torture or cruel, inhuman, or degrading treatment.” This would prevent use of military
commissions, but apparently would not prevent use of the CSRT or any other mechanism the
Executive employs to determine whether to continue to detain or to release prisoners. The
accompanying press release states that “Guantanamo Bay detainees who are found by the
Department of Defense to pose no continuing security threat to the United States or its allies,
and who have committed no crime, could be released.” Feinstein Press Release, supra note
GUANTANAMO AND BEYOND 1019
Indeed, the two bills, as written, would keep the system alive in whole or in
part. Moreover, it seems that demands for courts to allow easy victories
against suspected terrorists may be part of a more general reaction to
terrorist attacks, at least in democratic societies.25 For example, the 9/11
attacks were not the first call for loosening judicial rules: after the 1995
Oklahoma City bombing, there were demands for “military tribunals” to try
suspected terrorists without many of the traditional judicial safeguards for
My second assumption is one I make arguendo, which is that U.S.
officials believe that the rules they have created are capable of arriving at
accurate determinations of terrorist status and guilt. That is, officials do not
believe that the judicial corner-cutting evident in these rules sacrifices the
truth-seeking function of the tribunals. Rather, they believe that these
shortcuts merely allow the use of evidence that is accurate but which would
not be admissible in regular U.S. courts, which employ evidentiary and
18. Notably, the press release contains all of the standard objections to Guantanamo that I
canvassed above but not the objection that is my thesis.
S.B. 1469, sponsored by Sen. Tom Harkin (D-IA), would move the prisoners and
eliminate indefinite detention by requiring that prisoners be charged with a crime or released.
However, the bill keeps alive the option to try prisoners by military commission. See also
Foley, supra note 4, at A13 (providing a general critique of proposals to close Guantanamo).
Although the U.S. Court of Appeals for the Fourth Circuit recently relied upon language
in the Detainee Treatment Act and the Memorandum by the Secretary of the Navy that
created the CSRT to state that the CSRT applies only to prisoners at Guantanamo, this
language should not be regarded as dispositive on this issue. The Memorandum, of course,
could simply be changed by the Executive branch. In fact, in al-Marri v. S. L. Wright, 487
F.3d 160 (4th Cir. 2007), the Deputy Secretary of Defense had represented to the court that a
CSRT would be administered for the challenge by al-Marri, an alien legally residing in the
United States, if the court agreed that federal courts lacked jurisdiction to hear his challenge.
Id. at 173. The court found this assertion was not credible and was motivated by sharp
litigation practice. Id. The upshot is that the Executive, as it noted in its argument, does not
believe that any process applies to aliens imprisoned outside of the United States or
On the other hand, the court noted that military commissions are not limited by the
language of the Military Commissions Act to Guantanamo prisoners but may be applied
against enemy combatants captured in Iraq and Afghanistan. Id. at 172.
25See Ip, supra note 4, at 865-66; Jordan J. Paust, Post-9/11 Overreaction and Fallacies
Regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial
Review of Detention, and Due Process in Military Commissions, 79 NOTRE DAME L. REV.
1335, 1338-40 (2004); see also Jonathan H. Marks, 9/11 + 3/11 + 7/7 = ?: What Counts in
Counterterrorism, 37 COLUM. HUM. RTS. L. REV. 559 (2006) (providing a general discussion
of the public’s psychological reaction to terrorist attacks).
26See 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). But see Daniel M. Filler, Values We Can Afford—Protecting Constitutional Rights
in an Age of Terrorism: A Response to Crona and Richardson, 21 OKLA. CITY U. L. REV.
BRIAN J. FOLEY [Vol. 97
procedural rules that are, in a post-9/11 age, quaint in that they often protect
the dignity of citizens (such as against coerced confessions) or honor
privileges (such as the attorney-client privilege).27 I also assume arguendo
that officials rely upon the determinations of the tribunals as accurate,
especially those of terrorist status by the CSRT, and use those
determinations for intelligence-gathering and investigatory purposes.28 On
this view, officials are honestly misguided. I make this assumption in order
to critique the government policy on its face as being unable to help prevent
But the reality is probably more complex, though no less worrying. It
seems likely that officials (most of them, at least) know that rigged rules are
incapable of reaching accurate conclusions, and that officials do not rely on
the tribunals for truth-seeking at all. Indeed, one wonders how they could
think otherwise, given the extent to which the rules are rigged. Under this
view, rigging is the whole point: the rules are rigged because officials truly
believe the issue of guilt has already been determined. That is, they believe
that the people they have captured pose a threat of terrorism and that it is
therefore necessary to guarantee that any judicial “intermeddling” be
resolved in the government’s favor. If this is the case, officials are still
misguided because they are depriving themselves of a way to test their
assumptions and expose mistakes that foster the dangers I discuss in this
There is a further layer of complexity, which is the possibility that
officials (or at least some of them) do not have a good faith motive, but a
raw, political one. There has been powerful argument that the CSRT was
created not to engage in accurate sorting of terrorists from non-terrorists but
to cover up the mistaken detentions and overall brutality at Guantanamo
that metastasized as a result of government overreactions after 9/11.29
27See Ip, supra note 4, at 809.
28I make this assumption arguendo despite the fact that the CSRT was implemented
more than two years after Guantanamo opened its doors (or closed them, depending on one’s
29See MARGULIES, supra note 3, at 168-75; Karen J. Greenberg, Can Guantanamo be
Closed? What a New President Could Do, Antiwar.com, Apr. 27, 2007, available at
http://www.antiwar.com/engelhardt/?articleid=10878 (“U.S. officials have consistently held
that they are guarding vital national security interests by keeping the never-to-be-charged
detainees in custody. However, the sad truth is that, when it comes to most of these
prisoners, what’s really been at stake is the administration’s need to save face by concealing
its utter ineptitude. Privately, even Bush administration officials will acknowledge that the
detainees were captured and sent to Gitmo capriciously. . . . When an administration
defiantly adverse to ever admitting error decided not to send home those who had been
seized by mistake, it set itself a trap that it has been unable to escape to this day.”). The
CSRT was created to give the appearance of a fair process, which may assure U.S. citizens
as well as foreign governments and citizens—at least those who do not look too long or too
GUANTANAMO AND BEYOND 1021
These questions of motive are tricky, and it may be that there is a
mixture of these motives among officials. Resolving this question is
beyond the scope of this Article. My overall point is that the rules are
rigged, and whatever the motive, rigged rules prevent the tribunals from
being a useful aid—and make them downright counterproductive—to the
investigations that seek to thwart terrorist attacks.
Last, in this Article, I bracket the question of whether the processes are
legally permissible, and I do not focus on the rights of the men who have
been imprisoned. That does not mean that I regard these things as
unimportant. Instead, I take this opportunity to question the wisdom of the
thinking—which often appears reflexive—among policymakers that seeks
to grant only the minimal process that is believed to be due a person in
these circumstances. I argue that it is important to reflect upon the problem
of what process to give prisoners at Guantanamo, not from the perspective
of the prisoner’s rights and how much process is legally due but from the
separate perspective of how legal process can serve the War on Terrorism
goal of preventing terrorist attacks, and how to design legal process to serve
that purpose. I hope this Article will convince readers that when it comes to
judicial process and terrorism, not only is there no need to sacrifice civil
liberties for security, but that sacrificing civil liberties actually threatens
II. THE RULES ARE RIGGED
The rules that are used to determine whether to detain suspected
terrorists and to try them for war crimes are mere shadows—if not outright
perversions—of the rules applied in U.S. criminal courts. The Guantanamo
rules lack many of the traditional protections for defendants that are
guaranteed by the U.S. Constitution, protections that do not simply protect
the rights of defendants but that tend to produce accurate determinations by
decision-makers. This Part describes the rules used by CSRT, ARB, and
military commissions. It is important for the reader to bear in mind that I
am not arguing that these rules are illegal because they derogate from the
protections provided to criminal defendants in U.S. courts;30 I am merely
closely—that the United States is a law-abiding country and that it is making progress in the
War on Terrorism. See MARGULIES, supra note 3, at 170. It has also been argued more
broadly that the new criminal process helps leaders maintain political support as they
“respond by seeking to project an image of resoluteness and reassurance.” Parry, supra note
2, at 795. The harsh rules may also simply be a way of punishing, or fulfilling a public
desire to punish, Arabic men after 9/11. Daniel M. Filler, Presentation at Drexel University
(Jan. 12, 2007).
30This is an argument that the U.S. Supreme Court appears to have foreclosed—but
should revisit. See Hamdi v. Rumsfeld, 542 U.S. 507, 528-29, 532-36 (2004) (noting that
the district court “apparently believed that the appropriate process would approach the
BRIAN J. FOLEY [Vol. 97
using standard U.S. criminal procedural rules as a touchstone, and of these
standard rules I focus on the ones that serve the purpose, in whole or part,
of achieving accurate fact-finding.31
A. DETENTION RULE—COMBATANT STATUS REVIEW TRIBUNALS
1. Background: The Supreme Court Defers to the Executive in Hamdi and
When the United States first brought prisoners to Guantanamo Bay
from Afghanistan and other parts of the world in 2002, U.S. officials argued
that no laws applied.32 So, presumably, prisoners would not and did not
receive any process, only the conclusions reached by the military upon
capture. The prisoners, the Bush Administration had already argued, were
not prisoners of war (“POWs”) entitled to international law protections but
instead were “unlawful combatants,”33 then “enemy combatants,”34 a newly
process that accompanies a criminal trial” and rejecting the district court’s view in favor of
outlining a much more relaxed process). The Court’s suggestions regarding the appropriate
process is discussed infra Part II.A.1.
31I am also aware that the rules I call “standard” are not strictly obeyed in the majority
of criminal cases, as the majority of those such cases end in plea bargains. Plea bargains are
very likely to compromise accuracy, which is a serious problem. See, e.g., North Carolina v.
Alford, 400 U.S. 25, 37-39 (1970) (finding defendants may enter guilty plea while
maintaining innocence where there is strong (pre-trial) evidence of actual guilt); see also
Stephanos Bibas, Harmonizing Substantive Criminal Law Values and Criminal Procedure:
The Case of Alford and Nolo Contendere Pleas, 88 CORNELL L. REV. 1361 (2003). Plea
bargains might be seen as being somewhat protective of accuracy in the sense that the
bargains are struck in the shadow of the courts, which apply rules that foster accuracy. But
see GEORGE FISHER, PLEA BARGAINING’S TRIUMPH: A HISTORY OF PLEA BARGAINING IN
AMERICA 3 (2003) (barriers against injustice such as cross-examination and jury discretion
are absent from plea bargaining); Stephanos Bibas, Plea Bargaining Outside the Shadow of
Trial, 117 HARV. L. REV. 2463, 2464 (2004) (questioning this “oversimplified model” found
throughout “plea bargaining literature”). For discussion of how rules protecting accuracy
can discipline police investigations, see infra note 197 and accompanying text. Police
investigative techniques can become standardized as a result of procedural rules and
important court rulings. Of course, many police will often try to work around and exploit
such rules. See WELSH S. WHITE, MIRANDA’S WANING PROTECTIONS: POLICE INTERROGATION
PRACTICES AFTER DICKERSON 76 (2001) (describing how police have “adapted to Miranda”).
32See MARGULIES, supra note 3, at 84.
33Memorandum from President George W. Bush to the Vice President et al., re Humane
Treatment of Al Qaeda and Taliban Detainees (Feb. 7, 2002), reprinted in THE TORTURE
PAPERS: THE ROAD TO ABU GHRAIB 134 (Karen J. Greenberg & Joshua Dratel eds., 2005)
[hereinafter THE TORTURE PAPERS].
34Hamdi, 542 U.S. at 516 (“There is some debate as to the proper scope of this term
[“enemy combatant”], and the Government has never provided any court with the full
criteria that it uses in classifying individuals as such.”).
GUANTANAMO AND BEYOND 1023
invented term.35 In response to challenges to the detentions, which the
Supreme Court addressed in two cases in 2004, Hamdi v. Rumsfeld36 and
Rasul v. Bush,37 the Bush Administration argued that Guantanamo Bay did
not fall within the jurisdiction of any U.S. court38 and the prisoners had no
right to access U.S. courts to challenge their detention.39
In Rasul, the Court held that non-citizens regarded as enemy
combatants could challenge their detentions under the federal habeas corpus
statute.40 The Court stated that it “need not address now” what procedure
would be required for deciding such challenges.41 In Hamdi, on the other
hand, the Court did outline such a procedure in holding that a U.S. citizen
detained as an enemy combatant could challenge the factual basis of his
detention. The plurality opinion by Justice O’Connor was extremely
deferential to the Executive. It concluded that citizens accused of being
enemy combatants were entitled to “some process” to check that their
detention was not mistaken, such as “notice of the factual basis for his
classification, and a fair opportunity to rebut the Government’s factual
assertions before a neutral decisionmaker.”42 The plurality stated that
“interrogation by one’s captor, however effective an intelligence-gathering
tool, hardly constitutes a constitutionally adequate factfinding before a
Justice O’Connor went on to suggest an outline for these rules in
dicta.44 The process due could be limited because “the exigencies of the
circumstances may demand that, aside from these core elements, enemy-
combatant proceedings may be tailored to alleviate their uncommon
potential to burden the Executive at a time of ongoing military conflict.”45
Justice O’Connor wrote, “Hearsay, for example, may need to be accepted as
35MARGULIES, supra note 3, at 84.
36542 U.S. 507 (2004).
37542 U.S. 466 (2004).
38Id. at 470.
39Id. at 475-76 (addressing non-citizens); Hamdi, 542 U.S. at 516-17, 525 (noting the
Bush Administration argued that the Executive has plenary authority to detain citizens under
Article II; that Congress authorized such detention; and that courts should review only the
legality of overall detention schemes, not engaging in fact-finding in individual cases but
only applying the deferential standard of whether “some evidence” supports the
government’s stated reason for detaining the citizen).
40Rasul, 542 U.S. at 484; see also 28 U.S.C. § 2241 (2000).
41Rasul, 542 U.S. at 485.
42Hamdi, 542 U.S. at 533.
43Id. at 537. “Interrogation by one’s captor,” of course, cannot be “an effective
intelligence-gathering tool” if the person interrogated is not an enemy combatant or lacks
relevant information or both.
44Id. at 533-36.
45Id. at 533.
BRIAN J. FOLEY [Vol. 97
the most reliable available evidence from the government in such a
proceeding.”46 There may be a “rebuttable presumption” in favor of the
A burden-shifting scheme of this sort would meet the goal of ensuring that the errant
tourist, embedded journalist, or local aid worker has a chance to prove military error
while giving due regard to the Executive once it has put forth meaningful support for
its conclusion that the detainee is in fact an enemy combatant.48
This process could be a substitute for a court’s considering a petition for
habeas corpus.49 Notably, neither the plurality nor any other opinion,
concurring or dissenting, suggested that, going forward, anything like a
Gerstein hearing or a Federal Rule of Criminal Procedure 5.1 hearing
should be used shortly after capture to test the accuracy of the detention.50
The reason, as I will suggest in Parts III and IV, is that the Court was
unaware of the link between detentions, interrogations, and accurate
investigations that is the crux of this Article.
Shortly after the Supreme Court spoke, the Bush Administration
followed Justice O’Connor’s lead and created the CSRT, a purported
46Id. at 533-34.
47Id. at 534.
48Id. The opinion did not mention that many of the prisoners had been captured by
warring Afghani tribes, not U.S. forces, and that these captures may have been motivated by
bounties offered by the United States for al Qaeda and Taliban members. See Denbeaux &
Denbeaux, Profile of 517 Detainees, supra note 22, at 3. The Court was, however, aware of
the allegations, and noted in Rasul, the companion case, that relatives of some detainees who
were parties had alleged the capture was motivated by such bounties. Rasul v. Bush, 542
U.S. 466, 472 n.4 (2004).
49The Court noted that the military could create tribunals to test the factual
underpinnings of a detention but that “[i]n the absence of such a process . . . a court that
receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself
ensure that the minimum requirements of due process are achieved.” Hamdi, 542 U.S. at
50See discussion infra Part IV.A (proposing hearings similar to Rule 5.1 hearings).
Under Gerstein v. Pugh, 420 U.S. 103, 114 (1975) and County of Riverside v. McLaughlin,
500 U.S. 44, 56 (1991), a suspect who is arrested without a warrant and detained must be
taken before a magistrate within forty-eight hours of the arrest so that the court may
determine if there was probable cause to arrest under the Fourth Amendment. The Federal
Rules of Criminal Procedure require a hearing to determine whether probable cause exists to
believe that the defendant committed a crime, which must be held within ten days after the
defendant’s initial court appearance if the defendant is in custody or twenty days after the
initial court appearance if he is not in custody and he has not been indicted or charged by
information. FED. R. CRIM. P. 5.1(c). The defendant may cross-examine witnesses, FED. R.
CRIM. P. 5.1(e), and if the court concludes there is no probable cause, “the magistrate must
dismiss the complaint and discharge the defendant.” FED. R. CRIM. P. 5.1(f).
GUANTANAMO AND BEYOND 1025
substitute for habeas corpus that ostensibly would satisfy the needs and
exigencies Justice O’Connor suggested.51
2. The CSRT Rules
The CSRT rules are rigged. As Joseph Margulies, lead counsel in
Rasul v. Bush, has written, “the conclusion is simply inescapable that these
tribunals were created for no other purpose than to validate a predetermined
result. For years, the Administration has told the world that the prisoners at
the base were ‘enemy combatants,’ and now a ‘hearing’ will come to
precisely that conclusion.”52 The rules of evidence and the inability of the
detainee to gather evidence or otherwise mount a defense “ensure that the
particulars of any given detention remain shielded from outside scrutiny,
and the prisoner remains in a black hole.”53 The CSRT does not and cannot
carry out the sorting function, and because it is rigged, using it is practically
the same as having no hearing at all. Also, the hearings are not required to
be held early in the detention;54 if they were (and if they were accurate),
they could help prevent the multiplication of risks that ensues from
The shortcomings of the CSRT can be highlighted by comparing the
rules to the traditional protections afforded criminal defendants in U.S.
courts, as the rest of this Part will do.56
51See Memorandum from Paul Wolfowitz, Deputy Secretary of Defense, to the
Secretary of the Navy (July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/
d20040707review.pdf. After the CSRT hearings were completed, the U.S. government
informed federal courts planning to hold habeas hearings that these hearings were no longer
necessary. Denbeaux & Denbeaux, No-Hearing Hearing, supra note 22, at 4.
52MARGULIES, supra note 3, at 169. Much has been made of a military officer who was
involved in CSRT hearings coming forward recently to express his misgivings about the
accuracy and fairness of the CSRT. See William Glaberson, An Unlikely Adversary Arises to
Criticize Detainee Hearings, N.Y. TIMES, July 23, 2007, at A1. However helpful such
whistle-blowing can be to public awareness and understanding, the same conclusions can be
reached (and should have been reached earlier) merely by reading the CSRT rules, as this
section will show.
53MARGULIES, supra note 3, at 169.
54Indeed, the CSRT was created more than two years after the first prisoners were
brought to Guantanamo.
55These mistakes occur regardless of the motive behind rigging the CSRT rules. As
stated in Part I, I am assuming arguendo that the CSRT is relied upon as an accurate way of
screening out mistakenly imprisoned people. It may be that officials are well aware that the
rules are rigged and incapable of reaching accurate determinations; if that is true, this Part
will have little new to offer them, but they may find Part III illuminating.
56Again, I make this comparison not to argue that the rules are illegal because they
derogate from these protections but to highlight the risk of inaccuracy that results. Notably,
the dissenting opinion in Boumediene v. Bush, 476 F.3d 981, 1006 (D.C. Cir. 2007) (Rogers,
J., dissenting) argued that the CSRT process failed to provide the minimal protections that a
BRIAN J. FOLEY [Vol. 97
a. Broad Definition of “Enemy Combatant”
The CSRT is empowered to keep in prison anybody who fits the
following definition of “enemy combatant”:
An “enemy combatant” for the purposes of this order shall mean an individual who
was part of or supporting Taliban or al Qaida forces, or associated forces that are
engaged in hostilities against the United States or its coalition partners. This includes
any person who has committed a belligerent act or who has directly supported
hostilities in aid of enemy armed forces.57
At its broadest, this definition would permit detention at Guantanamo for
any person who merely “supported” forces “associated” with the Taliban or
al Qaeda that are engaged in “hostilities” with, say, Djibouti, Pakistan,
Poland, Nepal, or Qatar, which appear to be members of the “coalition,”
though it is unclear what the “coalition” even is.58 Nor does the definition
habeas corpus hearing must provide: “Insofar as each of these practices impedes the process
of determining the true facts underlying the lawfulness of the challenged detention, they are
inimical to the nature of habeas review.” I also think it is appropriate in many respects to
compare the CSRT rules with the trial rules in the U.S. justice system because the CSRT is
the only judicial process (and it is merely quasi-judicial at that) many prisoners have in
which to test the accuracy of their detention and losing at this hearing subjects them to
indefinite detention. Habeas, on the other hand, usually comes after trial and appeal in
regular U.S. courts have been exhausted, so there will have been some process under
rigorous rules (claimed errors notwithstanding); if the habeas proceeding is conducted in the
context of a war or other emergency, this exceptional circumstance will presumably end
within a few years and not last as long as the War on Terror.
It has been noted that the standards are also lower than those Article 5 of the Third
Geneva Convention requires to determine whether a captive is a POW or civilian. See
MARGULIES, supra note 3, at 161. For example, Article 5 tribunals employ a presumption
that the person is a POW, which means that the person will be detained with the protections
of the Geneva Conventions for a few years, if experience and history are a guide. Id. at 164.
If the person is found not to be a POW, the person is released, or, if accused of a crime,
turned over to civilian authorities and presumably tried in accordance with prevailing
procedural and evidence rules. These Article 5 rules differ from the CSRT in that the
presumption of the CSRT is that the person will be detained indefinitely—likely at least a
generation in the War on Terror—and without Geneva protections. Id. For the reasons set
forth above, I believe the comparison to the regular U.S. system is more appropriate.
57Memorandum from the Deputy Secretary of Defense to the Secretaries of the Military
Departments, Chairman of the Joint Chiefs of Staff, and the Under Secretary of Defense for
Policy, Enclosure 1: Combatant Status Review Tribunal Process (July 14, 2006), available at
CSRT Process]. Notably, this definition is expanded beyond the one the United States and
Supreme Court used in Hamdi and Rasul by changing the “and” to an “or,” which makes the
newer definition more inclusive. MARGULIES, supra note 3, at 161-62 (comparing definition
with that set forth in Hamdi).
58According to the U.S. government, the coalition began on September 12, 2001, and
now seventy nations are involved in the “global war on terrorism.” Coalition Fighting
CoalitionPages/Coalition%20Fighting%20Terror.aspx (last visited Sept. 23, 2007). If
GUANTANAMO AND BEYOND 1027
distinguish among detainees based on citizenship (U.S. citizens versus non-
U.S. citizens), and it may well be that the CSRT process would pass
constitutional muster for a citizen, as it is based on Justice O’Connor’s dicta
in Hamdi. In fact, counsel for the Executive branch argued in a federal
district court that this definition would include:
[a] little old lady in Switzerland who writes checks to what she thinks is a charity that
helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities,
a person who teaches English to the son of an al Qaeda member, and a journalist who
knows the location of Osama Bin Laden but refuses to disclose it to protect her
The little old lady, the English teacher, and the journalist are not terrorists,
and they are not engaged in war, or even violence, against the United States
or coalition nations. Nor are these hypothetical enemy combatants likely to
have relevant knowledge of terrorism against the United States. Such a
broad definition is contrary to the principle derived from the U.S.
Constitution that crimes may not be defined so broadly that they are capable
of sweeping up lots of innocent people and criminalizing what may be
understood as innocent behavior.60 I am not arguing that this definition of
enemy combatant is therefore illegal;61 I am pointing out that this broad
definition is likely to cause many innocent people to be imprisoned
indefinitely and interrogated, the dangers of which are discussed below.
b. Mode of Proceedings
The CSRT does not provide a trial but rather a hearing that is “non-
adversarial.”62 This framework contravenes a basic premise of the U.S.
“coalition” is limited to Operation Enduring Freedom in Afghanistan, and to the initial
invasion, the number of nations is smaller: twenty-seven, according to the White House,
which did not provide a listing. White House, Operation Enduring Freedom: One Year of
Accomplishments, http://www.whitehouse.gov/infocus/defense/enduringfreedom.html (last
visited Feb. 28, 2007).
59In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 475 (D.D.C. 2005) (citations
omitted), vac’d by Boumediene v. Bush, 476 F.3d 981, 994 (D.C. Cir. 2007). Government
counsel did not create these individuals but was responding to hypothetical questions posed
by the court. Id.
60See Morales vs. Chicago, 527 U.S. 41, 45-46, 64 (1999) (striking down as overbroad
and violative of due process an ordinance prohibiting “criminal street gang members” from
“loitering”); Papachristou v. Jacksonville, 405 U.S. 156 (1972) (same for vagrancy
61This is a question I have bracketed for the purposes of my critique. See discussion
supra Part I.
62CSRT Process, supra note 57, at 1 § B.
BRIAN J. FOLEY [Vol. 97
legal system, which is that adversarial hearings promote truth-seeking.63 At
Guantanamo, however, the non-adversarial proceedings involve a rebuttable
presumption in favor of the government’s evidence that the person is an
enemy combatant.64 This standard is contrary to the adversarial standard of
U.S. criminal trial rules, where no presumptions in favor of guilt (rebuttable
or not) are permitted: everything must be proved.65 The standard of proof
for the CSRT is “preponderance of the evidence,”66 much weaker than the
“beyond a reasonable doubt” standard in the U.S. criminal system.67
63See, e.g., Geoffrey C. Hazard, Law Practice and the Limits of Moral Philosophy, in
ETHICS IN PRACTICE: LAWYERS’ ROLES, RESPONSIBILITIES, AND REGULATION 75-93 (Deborah
L. Rhode ed., 2000). Hazard states:
Underlying this procedural function is a two-fold assumption. On the one hand, it is assumed
that judges are subject to such human failings as incomprehension, inattention, impatience, and
bias. On the other hand, it is assumed that legal procedures can mitigate these failings by
requiring the judge to consider plausible alternative versions of the law and the facts. The judge
must consider these plausible alternative versions on the way to, and as the means of, finding the
truth of the matter.
Id. at 81. Hazard continues and states that without lawyers arguing competing sides of an
issue, “the parties would have no advocates. We would be relegated to trusting divine
intervention or constituting the advocate as ‘both prosecutor and judge,’ as the saying goes.”
Id. at 83. Hazard also notes that this dialectical approach is found as well in our political
system, where an opposition party can serve this function, and in our economic system,
where competition serves to force competing viewpoints such as in advertising. Id. at 84.
But see Tung Yin, Procedural Due Process to Determine “Enemy Combatant” Status in the
War on Terrorism, 73 TENN. L. REV. 351, 410-11 (2006) (questioning whether lawyers help
achieve accuracy as opposed to “justice” in some instances). It is also believed by some
jurists that an inquisitorial as opposed to adversarial system can be more effective at truth-
seeking. See John H. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L.
REV. 823 (1985).
64CSRT Process, supra note 57, at 1 § B & 6 § G(11). Moreover, the presumption is
bolstered by the statement, “Each detainee whose status will be reviewed by a Tribunal has
previously been determined, since capture, to be an enemy combatant through multiple
levels of review by military officers and officials of the Department of Defense.” Id. It is
likely that the CSRT, made up entirely of military officers, might feel reluctant to gainsay
the findings of their superiors at the Department of Defense. See id. at 1 § C.
65See Francis v. Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442 U.S. 510
(1979); Ulster County Court v. Allen, 442 U.S. 140 (1979). The presumption of innocence
is a fundamental aspect of U.S. criminal procedure. Estelle v. Williams, 425 U.S. 501, 503
66CSRT Process, supra note 57, at 1 § B.
67See In re Winship, 397 U.S. 358 (1970). The U.S. criminal justice system at times
uses lower standards of proof, such as requiring a judicial determination of probable cause
for detaining someone after an arrest for the purposes of a trial. Gerstein v. Pugh, 420 U.S.
103, 124-26 (1975). Pretrial release can be denied under Bail Reform Act, 18 U.S.C. § 3141
et seq. (2000), “[w]hen the Government proves by clear and convincing evidence that an
arrestee presents an identified and articulable threat to an individual or the community.”
United States v. Salerno, 481 U.S. 739, 751 (1987). In Salerno, the Supreme Court held that
the Bail Reform Act provided sufficient safeguards for arrestees because it required a “full
GUANTANAMO AND BEYOND 1029
The tribunal members who make the ultimate determination at
Guantanamo are military officers, not judges. Only one of them is required
to be a trained attorney.68 Legal training is important, however, in terms of
arriving at accurate results because it develops the ability to weigh both
sides of a case, to scrutinize evidence, and to consider the various ways that
it can cut. Attorneys are trained to examine witnesses for bias, hidden
motives, personal knowledge, perceptive abilities, memory, and logical
consistency. People without legal training are less likely to question
evidence in these ways. Military officers are even less likely to question
evidence because they may fear that contradicting the earlier determination
that a prisoner is an enemy combatant could be interpreted as disobedience.
Indeed, the Uniform Code of Military Justice, which applies to regular
courts martial but not to the CSRT, specifically allows a defendant to
appeal if he believes the proceedings were unduly affected by “command
influence.”69 There are no such grounds for appeal, however, from the
CSRT. This unavoidable lack of neutrality can infect CSRT fact-finding.
The detainee is specifically prohibited from having the assistance of
counsel,70 unlike our own system, where the assistance of counsel is
explicitly guaranteed by the Sixth Amendment to the U.S. Constitution.71
Instead, the suspect is given a “Personal Representative,” a military officer
blown adversary hearing” and “immediate appellate review of the detention decision.” Id. at
750-52. These situations are distinguishable from the CSRT because the detention is not
indefinite—ultimately the arrestee, if the government decides to prosecute him, will be
guaranteed a trial using a beyond a reasonable doubt standard of proof, within a reasonable
amount of time as guaranteed by the Constitution’s right to a speedy trial. U.S. CONST.
68I do not stress that there is no jury, as guaranteed in criminal trials by the Constitution,
see U.S. CONST. amend. VI, because it is arguable whether a jury protects accuracy.
69See 10 U.S.C. § 837 (2000); Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2804, 2806-07
(2006) (Kennedy, J., concurring in part). The U.S. Supreme Court has described “command
influence” in courts martial as follows:
Courts-martial are typically ad hoc bodies appointed by a military officer from among his
subordinates. They have always been subject to varying degrees of “command influence.” In
essence, these tribunals are simply executive tribunals whose personnel are in the executive
chain of command. Frequently, the members of the court-martial must look to the appointing
officer for promotions, advantageous assignments and efficiency ratings—in short, for their
future progress in the service. Conceding to military personnel that high degree of honesty and
sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in
the nature of things, do not and cannot have the independence of jurors drawn from the general
public or of civilian judges.
Reid v. Covert, 354 U.S. 1, 35 (1957) (holding that trial by court martial of non-military
dependents of military personnel for capital offenses overseas in peacetime violated
70CSRT Process, supra note 57, at 2 § C(3).
71U.S. CONST. amend. VI; Gideon v. Wainwright, 372 U.S. 335 (1963).
BRIAN J. FOLEY [Vol. 97
who “shall not be a judge advocate . . . to assist the detainee in reviewing all
relevant unclassified information, in preparing and presenting information,
and in questioning witnesses at the CSRT.”72 On the other hand, the
government’s evidence is presented by the “Recorder,” who is “preferably a
judge advocate,” i.e., a trained attorney.73 The recorder functions not unlike
a prosecutor, given that the recorder is “to obtain and present all relevant
evidence to the Tribunal and to cause a record to be made of the
proceedings.”74 So not only is the playing field tilted in the government’s
favor in that there is a presumption in favor of the government’s evidence,
but it is also tilted in that a lawyer presents the government’s evidence
against the prisoner. Also, the personal representative, who is a member of
the military, may be outranked by the members of the CSRT,75 which could
subject his or her conduct to “command influence” in instances where he or
she perceives or even merely believes that the CSRT members desire
particular action or a particular outcome. The personal representative can
also be influenced by commanders more generally in that, much like the
CSRT members, the personal representative may fear questioning the
overall determination that a prisoner is an enemy combatant.76
c. Unreliable Evidence and Lack of Cross-Examination
Protections against unreliable evidence are relaxed as well. For
example, secret evidence may be used. That is, the suspect may be
removed from the CSRT while the decision-makers and his personal
representative hear the recorder present classified evidence against the
suspect.77 The suspect is prohibited from seeing this evidence, and the
personal representative is prohibited from discussing it with him.78 This
methodology is contrary to traditional requirements of notice and
opportunity to be heard,79 and very likely the Confrontation Clause in the
Sixth Amendment.80 What is not well understood, however, is that keeping
72CSRT Process, supra note 57, at 2 § C(3) (emphasis added).
73Id. at 2 § C(2) (stating that the recorder is “preferably a judge advocate”).
74Id. at 1 § B, 2 § C(2), 7 § H.
75Id. at 1, 2 §§ C(1), C(3). The personal representative may outrank the recorder. Id. at
2 §§ C(2), C(3).
76See discussion supra note 64.
77CSRT Process, supra note 57, at 4 § F(8), 8 § G(7).
78Id. at 4 § F(8), 8 § G(8).
79Boumediene v. Bush, 476 F.3d 981, 1005-06 (D.C. Cir. 2007) (Rogers, J., dissenting).
80U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 51-57, 62 (2004)
(Confrontation Clause requires that defendant have opportunity to cross-examine
“testimonial” evidence). It also violates U.S. statutory law, as set forth in the Uniform Code
of Military Justice (“UCMJ”) and the Geneva Conventions. Hamdan v. Rumsfeld, 126 S.
Ct. 2749, 2792-93, 2795-99 (2006) (discussing the UCMJ and the Third Geneva
GUANTANAMO AND BEYOND 1031
evidence secret from the suspect also threatens accuracy in that not only is
the suspect barred from seeing the evidence, but the personal representative
also cannot ask him to rebut or explain it—that is, to question its accuracy
either factually or contextually, or to help develop questions for cross-
examination.81 Hearsay evidence also may be used if the CSRT believes it
is reliable.82 This contravenes the Federal Rules of Evidence, which
prohibit hearsay except for certain categorical exceptions that have, over
time, proven to be accurate.83 Moreover, the Federal Rules do not give
even Article III judges the power to make a blanket determination of
reliability such as the non-lawyers on the CSRT are empowered to make.84
Likewise, coerced testimony may be used at Guantanamo if the CSRT
believes it is reliable.85 This contravenes protections long understood as
Convention); see also Andrew E. Taslitz, What Remains of Reliability: Hearsay and
Freestanding Due Process After Crawford v. Washington, 20 CRIM. JUST. 39 (2005)
(discussing the Confrontation Clause and reliability after Crawford).
81See Hamdan v. Rumsfeld, 344 F. Supp. 2d. 152, 168 (D.D.C. 2004) (addressing use of
classified evidence in military commissions), rev’d, 415 F.3d 33 (D.C. Cir. 2005), rev’d, 126
S. Ct. 2749 (2006).
82CSRT Process, supra note 57, at 6 § G(7) (“The Tribunal is not bound by the rules of
evidence such as would apply in a court of law. Instead, the Tribunal shall be free to
consider any information it deems relevant and helpful to a resolution of the issues before it.
At the discretion of the Tribunal, for example, it may consider hearsay evidence, taking into
account the reliability of such evidence in the circumstances.”).
83See FED. R. EVID. 801-807.
84At least, the judges are not clearly given that power.
[O]ne of the more divisive controversies in evidence law is whether hearsay that narrowly fails
the test for admission under one of the many hearsay exceptions (a “near miss”) can be admitted
nonetheless under the Federal Rule of Evidence 807, which allows a “residual exception” for
hearsay that a judge deems reliable.
GEORGE FISHER, EVIDENCE 514-18 (2002).
85Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005(e), 119 Stat. 2739, 2742
(2005). This section provides:
(b) CONSIDERATION OF STATEMENTS DERIVED WITH COERCION—
(1) ASSESSMENT—The procedures submitted to Congress pursuant to subsection (a)(1)(A)
shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or
any similar or successor administrative tribunal or board, in making a determination of status
or disposition of any detainee under such procedures, shall, to the extent practicable, assess—
(A) whether any statement derived from or relating to such detainee was obtained as the
result of coercion; and
(B) the probative value (if any) of any such statement.
Obviously, a CSRT or ARB can use these statements if the members deem the statement to
have probative value. Additionally, the CSRT or ARB might not find it “practicable” to
assess whether a statement was derived from coercion in the first place. Without such
assessment, the statement may simply be considered. CSRT Process, supra note 57, at 6
§ G(7) (permitting Tribunal to consider “any information it deems relevant”). Notably,
coerced testimony is not mentioned expressly in the CSRT Process.
BRIAN J. FOLEY [Vol. 97
required by the U.S. Constitution.86 Coerced confessions have long been
seen as inherently unreliable87 and, for that reason and others,88 are never
admissible in U.S. courts against a defendant.89
Cross examination has been recognized by the Supreme Court as the
“greatest legal engine ever invented for the discovery of truth.”90 Yet the
CSRT limits a prisoner’s ability to cross-examine. There is no right for him
to confront witnesses against him if their identity is classified or if they are
“unavailable.”91 A witness might be “unavailable” because he is a soldier
and his commanding officer deems that the soldier’s testifying at the CSRT
“will adversely affect combat or support operations,”92 an extremely broad
standard that can be abused easily. Proceeding without such a witness is
contrary to the Confrontation Clause93 and can lead to inaccuracy.
A prisoner or his personal representative (if so inclined) likely would
have difficulty conducting anything approaching a competent cross-
examination even if there were a full opportunity to do so, given that most
likely the prisoner is not an attorney, and no personal representatives are
attorneys. Also at Guantanamo, many prisoners speak no English or speak
it as a second or third language, which further complicates their limited
86See Jackson v. Denno, 378 U.S. 368, 385-86 (1964); Brown v. Mississippi, 297 U.S.
278, 287 (1936).
87John H. Langbein, The Legal History of Torture, in TORTURE, supra note 14, at 100
(“History’s most important lesson is that it has not been possible to make coercion
compatible with truth.”).
88Accuracy is not the only consideration: there are concerns over dignity, see Miranda v.
Arizona, 384 U.S. 436, 457, 460 (1966); fairness, see JOSEPH D. GRANO, CONFESSIONS,
TRUTH, AND THE LAW 106 (1993); protecting against a suspect’s having his
“will . . . overborne and his capacity for self-determination critically impaired,” Culombe v.
Connecticut, 367 U.S. 568, 602 (1961); and overall trust of government by citizens, see
Margaret L. Paris, Trust, Lies, and Interrogation, 3 VA. J. SOC. POL’Y & L. 3, 25-27 (1995).
89However, the erroneous use of coerced testimony at trial does not automatically lead to
a reversal of the verdict. The admission is tested under the harmless error test. Arizona v.
Fulminante, 499 U.S. 279 (1991). Also, although “[f]ailure to administer Miranda warnings
creates a presumption of compulsion,” Oregon v. Elstad, 470 U.S. 298, 307 (1985), such
statements may be admissible against a defendant pursuant to minor exceptions. See
Pennsylvania v. Muniz, 496 U.S. 582, 600-02 (1990) (finding police are not required to give
Miranda warnings when asking “administrative,” “routine booking questions” of arrestees,
such as requests for “name, address, height, weight, eye color, date of birth, and current
age”); New York v. Quarles, 467 U.S. 649, 657-50 (1984) (holding that admission of
confession without Miranda warnings was proper because police were seeking to protect
public’s safety when they asked suspect they had just arrested where he had discarded his
gun during pursuit).
90See California v. Green, 399 U.S. 149, 158 (1970) (quoting JOHN HENRY WIGMORE, 5
WIGMORE ON EVIDENCE § 1367, at 29 (3d ed. 1940)).
91See CSRT Process, supra note 57, at 6 §§ G(9), G(10).
92Id. at 6 § G(9)(b).
93U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36 (2004).
GUANTANAMO AND BEYOND 1033
chance to cross-examine. The Supreme Court has recognized that skilled
cross-examination can help prevent wrongful detentions, and for that
reason, has required the assistance of counsel at adversarial preliminary
hearings in U.S. courts.94
d. Presenting a Defense
Detainees are not guaranteed any right to present witnesses in their
favor.95 This is contrary to a meaningful opportunity to be heard,96 as well
as the right to compulsory process in U.S. courts.97 A suspect may call
witnesses but their attendance at the CSRT is voluntary (the CSRT does not
issue subpoenas) and at the witness’s own expense.98 Witnesses who
cannot be present may testify by telephone or video telephone, and other
information may be sent by e-mail or fax, but this is done only at the
discretion of the President of the Tribunal.99 These opportunities will in
most instances, however, be illusory. One can easily imagine, for example,
the difficulty a prisoner held incommunicado might have in contacting such
witnesses, or the difficulty that a witness from Afghanistan, one of the
world’s poorest countries, might have in finding out about, much less
paying for, a plane ticket from Kabul to Guantanamo Bay, Cuba—or
finding a telephone, video-telephone, computer, or fax machine.100
Also, unlike our criminal justice system, there is no duty on the part of
the government to turn over exculpatory evidence.101 This means that a
CSRT might have evidence that tends to show, or even proves, that a
detainee is not an enemy combatant but can keep it under wraps. Given that
the CSRT is designed to verify that the detainee was properly categorized
as an enemy combatant—here, assuming (as I do arguendo) that the CSRT
is rigged in good faith to permit the government to detain and interrogate
the prisoner where the government merely suspects but cannot prove that he
may be involved in terrorism—the military would seem to have little
incentive to turn over exculpatory evidence, as it could cause the release of
94See Coleman v. Alabama, 399 U.S. 1, 9 (1970) (finding the preliminary hearing is a
“critical stage” under the Sixth Amendment right to counsel because “plainly the guiding
hand of counsel . . . is essential to protect the indigent accused against an erroneous or
improper prosecution” because the attorney can, inter alia, conduct skilled cross-
95See CSRT Process, supra note 57, at 6 §§ 9, 10.
96See Boumediene v. Bush, 476 F.3d 981, 1005 (D.C. Cir. 2007) (Rogers, J., dissenting).
97See Washington v. Texas, 388 U.S. 14, 18-19 (1967).
98See CSRT Process, supra note 57, at 6 §§ 9(b), 9(c).
99See id. at 6 § 9(c).
100See MARGULIES, supra note 3, at 167.
101See Brady v. Maryland, 373 U.S. 83, 104 (1963).
BRIAN J. FOLEY [Vol. 97
a potential threat (however small). Of course, absent good faith, the
military would lack incentive to turn over such evidence even if it believed
that a prisoner posed no threat, because exonerations could prove politically
embarrassing. In either case, without a duty to do so, such a turnover of
evidence is unlikely, making it unlikely that the prisoner will be released. 102
Last, there is no protection against double jeopardy.103 If a prisoner
wins at one tribunal, that successful defense may be ignored. He may
simply be tried again, until the government wins.104
3. Appellate Review and Habeas Corpus
Appeals are extremely limited. There are no appeals within the CSRT
system.105 Beyond that, Congress has expressly limited appeals from CSRT
determinations to the U.S. Court of Appeals for the District of Columbia
Circuit, and it has limited the scope of these appeals to ensuring only that
the CSRT followed its own procedures.106 There is thus no real review of
the facts as determined by the CSRT.107 There is no right to habeas corpus
102MARGULIES, supra note 3, at 165-66 (making this point and relating account of CSRT
hearing where a German prisoner was not given evidence that German and U.S intelligence
officials had concluded there was no evidence he was part of al Qaeda).
103See U.S. CONST. amend. V (“No person shall . . . be subject for the same offense to be
twice put in jeopardy of life or limb . . . .”); Boumediene v. Bush, 476 F.3d 981, 1006-07
(D.C. Cir. 2007) (Rogers, J., dissenting).
104Boumediene, 476 F.3d at 1006-07 (Rogers, J., dissenting) (stating that, in at least one
known instance, a detainee was subjected to three hearings until the government finally
105See generally CSRT Process, supra note 57.
106Detainee Treatment Act of 2005, Pub. L. No. 109-48, § 1005(e), 119 Stat. 2680
(2005). The Act provides:
SCOPE OF REVIEW—The jurisdiction of the United States Court of Appeals for the District of
Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to
the consideration of—
(i) whether the status determination of the Combatant Status Review Tribunal with regard to
such alien was consistent with the standards and procedures specified by the Secretary of
Defense for Combatant Status Review Tribunals (including the requirement that the
conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a
rebuttable presumption in favor of the Government’s evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the
use of such standards and procedures to make the determination is consistent with the
Constitution and laws of the United States.
Id. § 1005(e)(2)(C).
107The U.S. Constitution does not provide a right to appeal for criminal defendants, and
it has not been interpreted as providing such a right by the U.S. Supreme Court. McCane v.
Durston, 153 U.S. 684 (1894). Rights to appeal are based largely on statutory law. See
MARK L. MILLER & RONALD F. WRIGHT, CRIMINAL PROCEDURES: CASES, STATUTES, AND
EXECUTIVE MATERIALS 1345-48 (2d ed. 2003).
GUANTANAMO AND BEYOND 1035
for any person “properly designated as an enemy combatant,”108 which
would seem to preclude collateral review of the determination itself.109
Regardless of whether such rules ultimately survive U.S. Supreme
Court scrutiny, it is hard to fathom, as a theoretical matter (and regardless
of the actual intent behind the formation of the CSRT), how the
determinations by the CSRT can be accurate, given that the rules do not
create anything like a firm epistemological basis for reliable conclusions.
B. DETENTION RULES—ADMINISTRATIVE REVIEW BOARDS
The CSRT procedure is complemented by an annual reassessment of
the prisoner’s status before an ARB.110 The purpose is to determine
whether a prisoner at Guantanamo who has been determined to be an enemy
combatant “should be released, transferred, or continue to be detained.”111
This process gives even less protection for accuracy than the CSRT rules
give. For example, there is no hearing in the traditional sense: the ARB
session may be conducted without the prisoner present,112 and “[w]itnesses
will not be allowed to testify or present information.”113 The ARB is not
required to include military judges or lawyers.114 In fact, the session is
essentially lawyer-free. The government’s evidence is presented by the
Designated Military Officer; these officers “shall not be Judge Advocates or
Chaplains.”115 The prisoner is assisted by the “Assisting Military Officer”
who similarly “shall not be a Judge Advocate or Chaplain,”116 and who
pointedly “is not an advocate for or against the continued detention of the
enemy combatant under review.”117
108Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (§ 950j(b))
109A recent case upholding the provision interpreted in this manner. See Boumediene v.
Bush, 476 F.3d 981, 994 (D.C. Cir. 2007) (“Federal courts have no jurisdiction in these
110See Deputy Secretary of Defense, Memorandum for Secretaries of the Military
Departments, Chairman of the Joint Chiefs of Staff, Under Secretary of Defense for Policy,
Revised Implementation of Administrative Review Procedures for Enemy Combatants
Detained at U.S. Naval Base Guantanamo Bay, Cuba, “Combatant Status Review Tribunal
Process” (July 14, 2006), available at http://www.defenselink.mil/news/Aug2006/
d20060809ARBProceduresMemo.pdf [hereinafter ARB Memo].
111Id. at 1.
112Id. at encl. 4 § 1(m).
113Id. at encl. 4 § 2(d).
114Id. at encl. 3 § 2.
115Id. at encl. 3 § 2(b) (emphasis added).
116Id. at encl. 3 § 2(c).
BRIAN J. FOLEY [Vol. 97
Protections against unreliable evidence are limited. The Federal Rules
of Evidence or any other rules of evidence specifically do not apply;
instead, the ARB may consider any evidence that it determines to be
reliable.118 It may also consider coerced confessions if it finds them to have
Whether the ARBs ultimately gain the Supreme Court’s approval, they
nevertheless present the same sorts of dangers as the CSRT.120 Holding an
ARB hearing is practically the same as holding no hearing at all.
C. GUILT ADJUDICATION RULES—MILITARY COMMISSIONS
Unlike the CSRT, military commissions have a venerable tradition.
They were used in the American Civil War.121 They were used in World
War II to try suspected Nazi saboteurs who had landed from U-boats on
Long Island, New York and Florida.122 The U.S. Supreme Court concluded
that the tribunals were constitutional and fell within the Executive’s Article
II Commander-in-Chief power.123 Military tribunals for suspected terrorists
were also suggested as a response to the 1993 bombing of the World Trade
Center in New York and the 1995 bombing of the Murrah Federal Building
in Oklahoma City.124
President Bush issued an Executive Order setting up military
commissions on November 13, 2001, shortly after the September 11, 2001
attacks, to try enemy combatants for unspecified war crimes.125 Since then,
the rules have gone through various incarnations.126 In response to the U.S.
Supreme Court decision Hamdan v. Rumfeld in June 2006, which held that
one aspect of these rules—permitting the government’s use of secret
118Id. at encl. 3 §§ 3(e)(2)-(4).
119Id. at encl. 13 § B (“[T]he ARB shall assess, to the extent practicable, whether any
statement derived form or relating to such detainee was obtained as a result of coercion, and
the probative value, if any, or such statement.”).
120See Jane Mayer, Q & A: In Gitmo, NEW YORKER ONLINE ONLY, July 6, 2005,
http://www.newyorker.com/online/content/articles/050711on_onlineonly01 (providing an
account of an ARB depicting the difficulties prisoners face in questioning the government’s
evidence against them).
121See Ex parte Milligan, 71 U.S. 2 (1866).
122See Ex parte Quirin, 317 U.S. 1 (1942).
124See Crona & Richardson, supra note 26, at 350-51.
125Presidential Military Order (Detention, Treatment, and Trial of Certain Non-Citizens
in the War Against Terrorism), 66 Fed. Reg. 57831-57836 (Nov. 13, 2001) [hereinafter Bush
126See Military Commission Order No. 1 (Procedures for Trials by Military
Commissions of Certain Non-United States Citizens in the War Against Terror, March 21,
2002) 32 C.F.R. § 9.2 (2002) [hereinafter Military Commission Order No. 1].
GUANTANAMO AND BEYOND 1037
evidence—violated statutory law (the Uniform Code of Military Justice and
the Third Geneva Convention),127 Congress passed legislation known as the
Military Commissions Act of 2006 (“MCA”) that repealed these statutes in
relevant part in October 2006.128
acquiescence),129 the legality of military commissions is questionable.130 To
resolve that question, it is more likely that the derogations from standards
required in U.S. courts martial and civilian criminal courts will matter to the
Supreme Court if it decides to hear challenges to the legality of the
commissions, as the enemy combatant is being tried for crimes and
subjected to the possibility of punishment, including the death penalty.131
Again, however, accuracy, not ultimate conclusions about legality, is my
participation (some might say
127Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2792-99 (2006).
128See Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).
The Military Commission procedural rules were issued on January 18, 2007, totaling 238
pages. See UNITED STATES ARMED FORCES, MANUAL FOR MILITARY COMMISSIONS,
available at http://www.defenselink.mil/pubs/pdfs/The%20Manual%20for%20Military%
129See, e.g., Ip, supra note 4, at 864-65 (calling passage of MCA a “craven capitulation”
by Congress). But see Parry, supra note 2, at 778-82 (arguing that Congress has played a
greater role in limiting executive power than it may appear).
130As of this writing, the MCA is considered constitutional, as it was upheld by a federal
appeals court on February 20, 2007. See Boumediene v. Bush, 476 F.3d 981, 986-88, 994
(D.C. Cir. 2007). After Boumediene, military commission cases against Omar Khadr and
Salim Ahmed Khadr were dismissed by military judges who concluded that the defendants
did not fall within the ambit of the MCA because they were only “enemy combatants”
pursuant to the CSRT and not “unlawful enemy combatants,” as the MCA requires. William
Glaberson, Military Judges Dismiss Charges for Two Detainees, N.Y. TIMES, June 5, 2007,
at A1 (emphasis added). Subsequently, the new Court of Military Commission Review has
concluded that a military commission judge has the power to determine whether a terrorism
suspect is an “unlawful enemy combatant” and has ordered the commission to go forward
against Omar Khadr. Josh White, Court Reverses Ruling on Detainee, WASH. POST, Sept.
25, 2007, at A4. I will use the term “enemy combatant” in this article. For my purposes, the
label does not matter. Congress can amend the MCA to delete “unlawful” if it chooses, the
Executive can reconfigure the CSRT to determine whether the prisoners it chooses to try in a
military commission are “unlawful enemy combatant[s]” and hold new hearings, or a new
label can be created.
131Military Commissions Act of 2006 § 948d(d).
132There has been insufficient discussion of the need for accuracy. Indeed, even the
ACLU’s support of a bill to revise the UMCJ lacks meaningful discussion of accuracy and
instead focuses on how the military commissions do not embody American “values.” E-mail
from Anthony Romero, Executive Director, American Civil Liberties Union, to Brian J.
Foley, Associate Professor of Law, Florida Coastal School of Law, et al. (Feb. 7, 2007,
17:39:07 EST) (supporting bill by Senator—and presidential candidate—Christopher Dodd,
D-CT, to revise MCA).
BRIAN J. FOLEY [Vol. 97
1. Wide Variety of Crimes
Military commissions try enemy combatants for “offenses that have
traditionally been triable by military commissions,” and the legislation
states that it creates no new crimes.133 Twenty-eight crimes are listed, but
only two deal directly with terrorism: “Terrorism,”134 and “Providing
Material Support for Terrorism.”135 There are crimes that do not seem
related to terrorism, including: “Pillaging,”136 “Denying Quarter,”137
“Improperly Using a Flag of Truce,”138 “Sexual Assault or Abuse,”139 and
“Intentionally Mistreating a Dead Body.”140
Other than the two terrorism crimes, these offenses may be appropriate
in the sense that some of the men imprisoned at Guantanamo were captured
on traditional battlefields, but they muddy the waters by making it possible
for investigators and prosecutors to spend time on matters that pale in
significance to preventing terrorist attacks. There seems little reason to
transport to Guantanamo a man whose crime was intentionally mistreating a
dead body in Afghanistan. It may be that these crimes were included
simply as arrows in the prosecutor’s quiver: an enemy combatant can be
threatened with trial by military commission, and the death penalty, for a
wide variety of crimes, as a way of forcing him to divulge information in
interrogations. That said, using the threat of a military commission as a
coercive interrogation tactic is most likely an ineffective way of gathering
accurate intelligence, as will be explained below.141
2. Mode of Proceedings
The military commissions provide more structural protections than the
CSRT rules provide, which may help achieve accurate fact-finding. For
example, the government must prove an enemy combatant has committed a
crime against the law of war “beyond a reasonable doubt.”142 The tribunal
must be presided over by an actual military judge.143 The enemy combatant
is permitted to have an attorney.144 These structural protections, however,
133Military Commissions Act of 2006 § 950p.
134Id. § 950v(b)(24).
135Id. § 950v(b)(25).
136Id. § 950v(b)(5).
137Id. § 950v(b)(6).
138Id. § 950v(b)(18).
139Id. § 950v(b)(22).
140Id. § 950v(b)(20).
141See infra Part III.D.1.
142Military Commissions Act of 2006 § 949l(c).
143Id. § 948j.
144Id. § 948k.
GUANTANAMO AND BEYOND 1039
are largely undercut by other derogations from the rules used in U.S.
3. Unreliable Evidence and Lack of Cross-Examination
Hearsay may be used if the tribunal believes it is reliable.145 The same
goes for coerced confessions.146 Again, as discussed above, even Article III
145Id. § 949a(b)(2)(E). Hearsay that would be inadmissible “under the rules of evidence
applicable in trial by general courts-martial” may be admitted if the proponent of the
evidence gives the opposing party fair notice, and if the party opposing admission fails to
“demonstrate[ ] that the evidence is unreliable or lacking in probative value.” Id.
§ 949a(b)(2)(E)(ii). Notably, this rule empowers the military commission to create a “catch-
all” exception to the Hearsay Rule that is far broader than the catch-all rule in the Federal
Rules of Evidence. See discussion supra note 84.
146Military Commissions Act of 2006 § 949a. This Section requires admission (“shall
not be excluded”) of statements alleged to result from coercion or compulsory self-
incrimination if the statements meet the requirements of MCA § 948r. Id. § 949a. Section
948r purportedly prohibits statements “obtained by the use of torture,” but it does not bar
statements “in which the degree of coercion is disputed.” Such statements are admissible:
Only if the military judge finds that—
(1) the totality of the circumstances renders the statement reliable and possessing sufficient
(2) the interests of justice would best be served by admission of the statement into evidence.
Id. § 948r. Statements obtained after passage of the Detainee Treatment Act of 2005 are
admitted with an additional requirement: “[T]he interrogation methods used to obtain the
statement did not amount to cruel, inhuman, or degrading treatment prohibited by section
1003 of the Detainee Treatment Act of 2005.” Id. § 948r(d)(3). The Detainee Treatment
Act definition of such treatment reads as follows:
[T]he term “cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual,
and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth
Amendments to the Constitution of the United States, as defined in the United States
Reservations, Declarations and Understandings to the United Nations Conventions Against
Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New
York, December 10, 1984.
Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1003(d), 119 Stat. 2680 (2005).
Notably, when President Bush signed this bill into law, he issued a signing statement that the
President had the power to interpret this Act as he saw fit, subject to “necessity.”
STATEMENT ON SIGNING THE DEPARTMENT OF DEFENSE, EMERGENCY SUPPLEMENTAL
APPROPRIATIONS TO ADDRESS HURRICANES IN THE GULF OF MEXICO, AND PANDEMIC
INFLUENZA ACT, 2006, available at http://www.whitehouse.gov/news/releases/2005/12/
20051230-9.html. It is therefore likely that these limitations will not restrict the Executive
branch in a meaningful way, especially when detainees have no right to challenge any such
treatment in a U.S. court. It is also likely that the torture restriction in the MCA is
meaningless. It would seem that any time torture is alleged, if it is disputed by the U.S.
government, then the statement that the detainee alleges was the result of torture will then
become a statement where “the degree of coercion is disputed.” See Military Commissions
Act of 2006 § 948r. Then the statement will be admitted if the arguably lax requirements set
forth earlier in this footnote are met (“totality of circumstances” as to reliability and
“interests of justice”).
BRIAN J. FOLEY [Vol. 97
judges—trained, usually experienced, lawyers who must be confirmed by
the Senate—are not permitted to admit hearsay unless it fits within carefully
crafted exceptions to the rule of exclusion. Article III judges can never
admit coerced confessions.147
Evidence may also be used without disclosure of the “sources,
methods, or activities by which the United States acquired the evidence” if
that information is classified.148 So the suspect cannot confront witnesses
against him149 or examine a witness fully if doing so would bring up
classified evidence. In contrast, in U.S. courts, if the government decides
not to give up classified evidence, then it cannot use that evidence against
the defendant; the government must make a choice. In the military
commission rules, as the district court noted in Hamdan, the government
does not have to make such a choice, and the evidence may be used without
any possibility for the accused to test its accuracy.150
4. Presenting a Defense
The accused is given “a reasonable opportunity to obtain witnesses and
other evidence,” and the process for compulsion must be “similar” to that in
U.S. criminal courts.151 However, it is not difficult to foresee that the
jurisdictional limitation (“any place where the United States shall have
jurisdiction thereof”152) could make this right illusory in most military
commission cases because most defendants will need information located in
Similarly, the requirement that the government turn over exculpatory
evidence is weakened by the requirement that classified evidence must be
withheld and may be replaced with “an adequate substitute . . . to the extent
147See supra note 89 and accompanying text.
148Military Commissions Act of 2006 § 949d(f). Of course, this makes it impossible for
the accused to cross-examine the source of the information, which would violate the
Confrontation Clause of the Sixth Amendment in a U.S. trial: such evidence simply could
not be admitted. See Hamdan v. Rumsfeld, 344 F. Supp. 2d. 152, 170-71 (D.D.C. 2004)
(noting the UCMJ has elaborate procedures to protect classified evidence, but evidence
which cannot be protected or be substituted by an alternative cannot be admitted against
defendant). Id. at 168.
The restriction on using classified evidence in military commissions is greater than that in
the CSRT, where the accused may be kept out of the courtroom while classified evidence is
admitted against him; a defendant may be excluded from a military commission only where
“the accused persists in conduct that justifies exclusion from the courtroom—(1) to ensure
the physical safety of the individuals; or (2) to prevent disruption of the proceedings by the
accused.” Military Commissions Act of 2006 § 949d(e).
149See U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 61-62 (2004).
150Hamdan, 344 F. Supp. 2d at 171.
151Military Commissions Act of 2006 § 949j.
152 Id. § 949j(b)(2).
GUANTANAMO AND BEYOND 1041
practicable.”153 It is unclear what a substitute might be or what
“practicable” might mean in any particular case. It follows that if there is
no substitute, then the exculpatory evidence cannot be turned over and the
case would proceed.
5. Appellate Review and Habeas Corpus
Appellate review will be provided by the new “Court of Military
Commission Review” established by the Secretary of Defense, which will
be made up of appellate military judges meeting the regular qualifications
of military judges or civilians “with comparable qualifications.”154 The
scope of these appeals is limited to matters of law.155 Therefore, there is no
review of the military commission’s fact-finding. (Nor does this court
review the CSRT’s fact-finding, as the military commission itself cannot
review the conclusion that the accused is an enemy combatant—that
conclusion “is dispositive for purposes of jurisdiction for trial by military
commission.”156) Any appeal outside of this system must be made to the
United States Court of Appeals for the District of Columbia Circuit, which
has exclusive jurisdiction.157 Review there is also limited to matters of
law,158 and the review is itself limited to “(1) whether the final decision was
consistent with the standards and procedures specified in this chapter; and
(2) to the extent applicable, the Constitution and the laws of the United
States.”159 The U.S. Supreme Court may review a final judgment by writ of
certiorari.160 There is no habeas review.161
153Id. § 949j(d). “To the extent practicable” is incorporated by this subsection’s
reference to 949j(c). Id.
154Id. § 950f(a)-(b).
155Id. § 950f(d).
156Id. § 948d(c).
157Id. § 950g(a).
158Id. § 950g(b).
159Id. § 950g(c).
160Id. § 950g(d). The review is “pursuant to section 1257 of title 28.” Id.
161Id. § 950j(b); see Boumediene v. Bush, 476 F.3d 981, 986-88, 994 (D.C. Cir. 2007)
(holding that the MCA and Constitution deny habeas corpus for Guantanamo detainees),
cert. denied, 127 S. Ct. 1478 (2007), cert. granted, 127 S. Ct. 3078 (2007). It is unclear
whether such a negation of the venerable right is permissible. See Gerald L. Neuman,
Extraterritorial Rights and Constitutional Methodology After Rasul v. Bush, 153 U. PA. L.
REV. 2073, 2073 (2005) (arguing that the “majority opinion strongly suggests in a footnote
that foreign nationals in U.S. custody at Guantanamo Bay Naval Base (‘Guantanamo’)
possess constitutional rights” but noting that the “opinion leaves ambiguous the reason why
foreign nationals have constitutional rights there—whether because they are human beings in
long-term U.S. custody or because of the special character of U.S. authority at
BRIAN J. FOLEY [Vol. 97
III. DANGERS OF RIGGED RULES
Rigging the rules in a way that eases protections on accuracy creates
several dangers beyond those to the prisoner’s liberty interest: it threatens
national security. Some of the dangers, such as fomenting and feeding the
anger and resentments that can motivate people to attack the United States
using terrorist tactics, impeding relationships with relevant communities
that could be used to help track down terrorists, and making the United
States look hypocritical in that its “soft power” to effect and affect positive
policies and serve as an example is weakened, have been discussed in other
commentaries.162 This Article focuses on a different danger: the danger that
these rigged rules pose for the collection of accurate information crucial to
effective prosecution of the war on terror.
It should be noted that the problems discussed in this part have
plagued intelligence-gathering efforts at Guantanamo from the start. The
cause has not been the CSRT and its rigged rules, which, after all, were
created more than two years after the first prisoners arrived, but the
government’s overall failure to design a reliable way of sorting out
prisoners who are involved in terrorism from those who are not. This
failure has been noted by interrogation expert Steven M. Kleinman in a
study sponsored by the National Defense Intelligence College, who said
that accurate sorting was absent, albeit necessary, at Guantanamo: “This
point, while seemingly obvious, has proven anything but in the course of
current interrogation operations.”163 The CSRT has failed to correct this
162See supra notes 16-18; see also David Cole, The Priority of Morality: The Emergency
Constitution’s Blind Spot, 113 YALE L.J. 1753, 1787 (2004) (discussing post-attack
suspicionless dragnets based on racial or religious stereotypes and stating, “Even where there
may be some rational basis for the stereotype, as in the supposition that al Qaeda is likely to
consist predominantly of Arab and Muslim men, such profiling is, in most cases, vastly
overbroad, and inevitably incurs resentment in the targeted group. That resentment in turn
reduces the likelihood that members of the targeted group will cooperate in helping to locate
the truly bad actors, while fueling recruits to the cause against us.”).
163See Kleinman, supra note 1, at 107. Kleinman wrote:
[S]creening is a critical component of the overall interrogation process. Every effort must be
made not only to assess the knowledgeability and cooperation of the source, but—of supreme
importance—to vet the individual in a manner that provides the interrogator with a high degree
of confidence in the source’s identity. This point, while seemingly obvious, has proven anything
but in the course of current intelligence operations. From the detention center in Guantanamo
Bay, Cuba, to Bagram Air Force Base, Afghanistan, to various interrogation facilities in Iraq,
reports abound of prisoners held in detention and interrogated at length because of mistaken
identification. Several factors contribute to this unfortunate situation, including difficulties in
transcribing names from Arabic, Pashto, and Urdo into English; classic cross-cultural
GUANTANAMO AND BEYOND 1043
problem which, if used going forward, will foster the dangers discussed in
These dangers will persist regardless of officials’ motive in designing
the CSRT as well as in using it. If officials believe that the CSRT provides
an accurate conclusion that a prisoner is a terrorist, as I assume arguendo,
then they risk that investigations will be ineffective and counterproductive.
If officials do not believe the CSRT is accurate but understand that it is
rigged to rubberstamp earlier conclusions about prisoners yet also believe
the truth of those earlier conclusions that the prisoners pose a danger, the
officials court the same dangers to effective investigations. If officials
know the CSRT is rigged for political expedience and are savvy enough to
recognize that many of its determinations are inaccurate, they are still
courting risks, because they are missing an opportunity to correct mistakes
which foster the dangers discussed in this section. The main problem is
that, CSRT or no CSRT, U.S. officials have not created any mechanism that
allows for objective, vigorous testing of its conclusion that a prisoner is an
This Part relies on logic and experience to argue about these dangers.
The experience cannot be based wholly on Guantanamo or the new justice
system because of the secrecy surrounding them, and their newness. The
extent of the wrongful detentions and the missed and botched investigative
opportunities will likely never be fully known. Likewise, it is possible that
some successes will not be known at least for the time being, if the
government chooses not to trumpet them, perhaps out of a belief that
revealing this information could compromise national security. However,
these missing data should not deter us from subjecting this policy to
B. DANGERS TO INVESTIGATORY EFFECTIVENESS WHERE THE
PURPOSE OF DETENTION IS INTERROGATION
What must be understood about Guantanamo is that it is an
interrogation camp, not a traditional prisoner-of-war camp where
combatants are merely detained until the end of hostilities to prevent their
rejoining the fight.164 It was designed as a legal no man’s land, a black
hole, where U.S. laws would not apply; the enemy combatant classification
misunderstandings; and a high-threat operating environment that leads many to err on the side of
capture rather than release.
Id. (emphasis added). Kleinman could have added that the problem also stems from CSRT
rules that risk such errors by applying a low standard of proof, a presumption of guilt, and
reliance on hearsay and coerced testimony.
164MARGULIES, supra note 3, at 39 (“We begin to see what the Administration had in
mind when it created Camp Delta [at Guantanamo]: the ideal interrogation chamber.”).
BRIAN J. FOLEY [Vol. 97
was designed so that international laws, most notably the Geneva
Convention, would not apply: enemy combatants fall through the cracks
between combatants and civilians—or so the argument goes.165 Therefore,
Guantanamo became a place where U.S. officials believed they could
“legally” (read: not illegally) apply certain coercive interrogation
techniques which have been detailed in what is known as the “KUBARK
[CIA] Manual,” a CIA-written manual of interrogation techniques.166
The upshot is that coercive interrogation techniques virtually guarantee
a certain proportion of false confessions. This fact is crucial. The
reliability of coerced confessions has long been seen as questionable.167
U.S. officials are therefore probably hearing many false confessions from
suspected terrorists. Reports that have poked out from behind the shroud of
secrecy at Guantanamo support this contention.168 Most people who are
165Id. at 39.
166Id. at 37-40. “KUBARK” is a CIA code name for itself. The manual, written in
1963, was classified but became publicly known in 1997 pursuant to a Freedom of
Information Act by the Baltimore Sun. The manual and further information about it can be
found on George Washington University’s National Security Archive website. Prisoner
Abuse: Patterns from the Past, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/
index.htm (last visited Feb. 26, 2007). Most likely, public political support for these policies
(perhaps not overwhelming and perhaps not even majority support, but sufficient for the
policy to persist) is based on a belief that these harsh methods work. Brian J. Foley, Why
Americans Don’t Care About GTMO, and Why They Should, JURIST, Nov. 1, 2005,
167See Stephen Holmes, Is Defiance of Law a Proof of Success? Magical Thinking in the
War on Terror, in TORTURE DEBATE, supra note 15, at 119-23 (setting forth views from
Aristotle to the present). For a brief discussion of this topic, see infra Part IV.B.
A recent study by the National Defense Intelligence College Intelligence Science Board
[A]lthough there is no valid scientific research to back the conclusion, most professionals believe
that pain, coercion, and threats are counterproductive to the elicitation of good information. The
authors [of chapters 5 and 6 of the book] cite a number of psychological and behavioral studies
to buttress their conclusion, but are forced to return to the statement: “more research is
Pauletta Otis, Educing Information: The Right Initiative at the Right Time by the Right
People, in EDUCING INFORMATION, supra note 1, at xix. Likewise, Rumney, in his article
questioning the effectiveness of coercive interrogation, concludes:
Unfortunately for the proponents and opponents of coercive interrogation, effectiveness is a far
more complex affair than has often been acknowledged. The fact is that coercion does
sometimes work in individual cases, but a significant body of evidence raises serious doubts
about its overall reliability and predictability.
Rumney, supra note 16, at 512. Levinson also questions whether the effectiveness of torture
can ever be determined. Levinson, Contemplating Torture, supra note 14, at 33-34.
168Some of the false confessions that have become known will be discussed later in Part
III.B.1. For an additional argument that confessions at Guantanamo have not been reliable,
and that, moreover, Guantanamo has not proved to be a source of useful intelligence, see
GUANTANAMO AND BEYOND 1045
“water-boarded,” beaten, deprived of sleep, and attacked by guard dogs—or
who are simply threatened with such treatment—will, at some point, decide
that it is in their interest to acquiesce to their captors, such as by telling
them what they know, agreeing with the accusations interrogators make
against them, or even concocting stories that they believe will please their
Another point is even more crucial: even if the interrogation
techniques used at Guantanamo are effective, even if torture is effective in
some cases at squeezing accurate rather than fabricated information out of
suspects who actually are terrorists,170 such effectiveness is severely
dampened when torture is applied to people who have been imprisoned
pursuant to a broad, indiscriminate policy that nets a large number of
suspects who lack relevant knowledge. The weak standards of the CSRT
may exacerbate this problem at Guantanamo and certainly will do so if used
as part of the U.S. detention policy going forward because the rigged rules
can serve to “validate” for (at least some) investigators the sense that the
people they are interrogating are actually terrorists with relevant
information; these suspects’ failure to provide information may be
Joshua Dratel, The Curious Debate, in TORTURE DEBATE, supra note 15, at 114 (“Surely if
there were some benefit from the torture practiced at Guantanamo Bay, the government
would have announced it widely. Yet the government has not pointed to a single piece of
information gleaned from the Guantanamo Bay detainees—and the response that such
intelligence is classified is merely an excuse to hide behind, since the government has
regularly leaked information it has received from detainees in other locations . . . that has
been useful in the war against terrorism . . . . [T]he information the government obtained via
torture at Guantanamo Bay has often proved unreliable . . . . In fact, the most useful
information gleaned form al Qaeda captives has been through conventional intelligence and
law enforcement methods.”).
169See Amos N. Guiora & Erin M. Page, The Unholy Trinity: Intelligence, Interrogation
and Torture, 37 CASE W. RES. J. INT’L L. 427, 446-47 (2006) (“A final thought—one of the
significant problems with torture is that a detainee in order to stop the pain will tell his
interrogator what he thinks he wants to hear either consciously (disinformation) or
unconsciously (misinformation). From an operational perspective, both are highly
problematic. Limited resources can be misdirected (a military force will stop bus number 5,
rather than bus number 7 that actually has the bomb). That in and of itself, is cause enough
to forbid torture.”). I discuss these particular dangers below. See infra Part III.B
(misinformation) and Part IV.B (disinformation). Coercive methods used by U.S.
interrogators have been described in depth elsewhere. See, e.g., Bowden, supra note 14, at
51-76; Douglas Jehl, Report Warned C.I.A. on Tactics in Interrogation, N.Y. TIMES, Nov. 9,
2005; Joseph Lelyveld, Interrogating Ourselves, N.Y. TIMES MAG., June 12, 2005, at 36-69;
Jane Mayer, The Experiment: The Military Trains People to Withstand Interrogation. Are
Those Methods Being Misused at Guantanamo?, NEW YORKER, July 11, 2005, at 60;
Amnesty International, Guantanamo and Beyond: The Continuing Pursuit of Unchecked
Executive Power (May 13, 2005), available at http://web.amnesty.org/library/Index/
170See infra Part IV.B & note 227.
BRIAN J. FOLEY [Vol. 97
interpreted not as ignorance but as intransigence, even as evidence of al
Qaeda training.171 The “confirmation” of enemy combatant status by a
supposed judicial tribunal can lead investigators to continue coercing the
suspect until he finally “confesses.”172 Investigators will be inundated with
false confessions and false leads that often will appear just as solid as
genuine confessions and genuine leads.
For preventing terrorism, this policy is not only ineffective; it is
counterproductive. There are several problems that result from
interrogating people who are falsely identified as terrorists.
1. Distorting Reality
Hundreds of prisoners giving false confessions present officials with a
distorted view of reality. Investigators hear incriminating accounts by and
about individuals who are not really terrorists, stories of plots that are not
real, and about terrorist tactics that are pure invention. Ultimately,
investigators are not learning about the enemy. In chasing such illusions,
and in constructing Maginot Lines against them, U.S. officials could be
blindsided by actual attackers.
Indeed, notwithstanding the secrecy surrounding U.S. interrogations at
Guantanamo and other sites, it is known that false confessions have
occurred. A confession extracted—and later recanted—from a prisoner
“rendered” to Egypt that al Qaeda operatives received training in chemical
and biological weapons in Iraq was an important part of the U.S. case for
invading Iraq,173 an invasion that is now widely regarded as an unnecessary,
costly blunder.174 Interrogations of alleged 9/11 plotter Khalid Sheikh
Mohammed caused him to “spin an elaborate web of lies.”175 Shafiq Rasul,
the named plaintiff in Rasul v. Bush, falsely confessed to being at an al
Qaeda training camp in Afghanistan when undisputed evidence ultimately
showed that he was home in England at that time.176 Journalist David Rose
reported that Moazzem Begg, under interrogation at Bagram in
Afghanistan, “confessed to planning to drop anthrax spores on the House of
171See Kleinman, supra note 1, at 117 (“[O]ne cannot overlook the role of formalized
resistance training. As the so-called Al Qaeda Manual attests, that organization has
compiled a systematic resistance strategy for employment by operatives taken into
172MARGULIES, supra note 3, at 40.
173Id. at 118-19.
174See James A. Baker III & Lee H. Hamilton, Letter from the Co-Chairs, in THE IRAQ
STUDY GROUP REPORT: THE WAY FORWARD—A NEW APPROACH 4 (2006).
175MARGULIES, supra note 3, at 178-79.
176Id. at 40-43. Margulies also details the false confession of another client, Mamdouh
Habib, resulting from coercive interrogation after being rendered to Egypt. Id. at 182-88.
GUANTANAMO AND BEYOND 1047
Commons from a ‘drone,’ an unmanned aerial vehicle.”177 Rose points out
that the confession was absurd, given that the flight of the drone was to
begin in Sussex, which is several miles from London, and that for such a
flight, a sophisticated drone would be required, and Begg was unlikely to
acquire one: “Accurate UAVs [unmanned aerial vehicles] are part of the
latest generation of American weaponry, and they cost millions of dollars
each.”178 Also, some of the information that caused Bush Administration
officials to issue “terror alerts” during the past few years came from
interrogations.179 It is thus not surprising that some of these threats were
proven false.180 These known false confessions are likely just the tip of the
In addition, the coercive methods can render a prisoner useless as an
intelligence source in that they might drive him insane. Several prisoners at
Guantanamo have suffered this fate.182 Recently, lawyers for a U.S. citizen
held as an enemy combatant, José Padilla, have argued that Mr. Padilla is
177DAVID ROSE, GUANTANAMO: AMERICA’S WAR ON HUMAN RIGHTS 120 (2004). Begg
has penned his own book, MOAZZEM BEGG & VICTORIA BRITTAIN, ENEMY COMBATANT: MY
IMPRISONMENT AT GUANTÁNAMO, BAGRAM, AND KANDAHAR (2007). The book appears
under various titles.
178ROSE, supra note 177, at 120.
179See SUSKIND, supra note 8, at 115-18.
180See Joshua Micah Marshall, Toying with Terror Alerts?, TIME MAG., July 7, 2006,
http://www.time.com/time/nation/article/0,8599,1211369,00.html (suggesting “the quite
reasonable suspicion that the Bush Administration orchestrates its terror alerts and arrests to
goose the GOP’s poll numbers”); see also IAN S. LUSTICK, TRAPPED IN THE WAR ON TERROR
46-47 (2006) (questioning degree of the threat and noting, “What we see is striking—the
near total absence of evidence of al Qaeda sleeper cells or of sophisticated groups of Muslim
extremists planning or preparing for attacks of massive destruction inside the borders of the
United States . . . . [I]f there are such threats, their magnitude is without doubt vastly
smaller than the scale of the War on Terror.”); see generally JOHN MUELLER, OVERBLOWN:
HOW POLITICIANS AND THE TERRORISM INDUSTRY INFLATE NATIONAL SECURITY THREATS,
AND WHY WE BELIEVE THEM (2006).
181ROSE, supra note 177, at 83-129 (discussing interrogation techniques and criticism of
those techniques as not yielding reliable intelligence). Indeed, as Rose reports, one military
intelligence officer who worked at the Pentagon in 2003 did not believe Guantanamo was an
effective intelligence-gathering operation.
In his view, the incentive system . . . coupled with the prospect of indefinite detention, makes
information obtained through interrogation inherently unreliable. If a detainee has no hope for
release, he is probably going to do whatever he can to improve the quality of his life. Many
detainees have spent a year or more locked down under very tough conditions. Offering
detainees comfort items . . . in exchange for information is most likely to result in them telling
you what they think you want to hear.
Id. at 115, 117-18.
182MARGULIES, supra note 3, at 139.
BRIAN J. FOLEY [Vol. 97
unfit to stand trial because the coercive methods and more than five years of
incommunicado detention have rendered him mentally incompetent.183
2. Waste of Investigators’ Time and Resources
False confessions also waste investigators’ time. When many people
have been imprisoned and interrogated, investigators can become inundated
with too many leads,184 which they must chase down.185 This waste cannot
be avoided. Most investigators do not want to be “The One Who Dropped
the Ball,” so if a prisoner says he conspired to bomb the New York Stock
Exchange, a reasonable investigator will feel obligated to check it out. If
the plot amounts to nothing, the investigator moves on to the next. If that
turns out to be nothing, the investigator tries the next. And so on. After
several wild goose chases, a dynamic is likely to take effect: investigators
run out of enthusiasm and cease to apply the same rigor in pursuing new
leads, some of which might be real.186 Chasing down false leads represents
an opportunity cost of time and resources that could be used to develop real
leads in investigations of real plots.187
183Naomi Klein, A Trial for Thousands Denied Trial, NATION, Mar. 12, 2007, available
184They are already inundated with leads from their post-9/11 increase in surveillance
and data collecting powers, and they cannot analyze all of those. See BRUCE SCHNEIER,
BEYOND FEAR: THINKING SENSIBLY ABOUT SECURITY IN AN UNCERTAIN WORLD 162 (2003).
185Michael Ratner, Moving Away from the Rule of Law: Military Tribunals, Executive
Detentions and Torture, 24 CARDOZO L. REV. 1513, 1521 (2003) (“[T]orture will elicit a lot
of false information from many people. Agents will spend wasted time tracking down false
leads. The government will issue warnings that have no basis.”). Ratner does not elaborate
further, and at least four other commentators have suggested this problem without
elaborating further. See Guiora & Page, supra note 169, at 446-47; Levinson,
Contemplating Torture, supra note 14, at 33; Rumney, supra note 16, at 481 n.11; see also
MARGULIES, supra note 3, at 29 (“The military obviously has no legitimate interest in
obtaining unreliable intelligence, and the most compelling practical objection to the use of
torture is the likelihood that it will produce just that.”). Notably, a recent study by the
National Defense College failed to address the fact that poor screening and coercive
interrogation can distort terrorism investigations; this danger was not addressed in an essay
purporting to detail the costs and benefits of interrogation in the war on terrorism. See
generally Coulam, supra note 16.
186It seems the only way to avoid this drop in enthusiasm and rigor would be to hire new
investigators perennially, in the management tactic known as “churn and burn” that is
common at many large law firms. See Tamara Loomis, The Real World According to
Summer Associates, AMERICAN
187How terrorism investigations are conducted is by nature a question shrouded in
secrecy. Professor Christopher Hewitt has studied U.S. terrorism and, after examining “293
cases for which details are available,” charted the “most important factors involved in the
capture of terrorists” as a percentage as: informers and infiltrators, 46.4%; surveillance,
29.7%; caught in the act, 23.5%; routine policing, 7.5%; investigation, 14.7%; information
(Nov. 27, 2006),
GUANTANAMO AND BEYOND 1049
3. Misdirected Focus
A danger that pervades this policy comes from the fact that it causes
investigators to focus on proving (read: confirming) that the people who
have been rounded up are terrorists. This bias infects efforts to obtain
confessions and other evidence, and it infects how investigators interpret
evidence. When one is sure that someone is a terrorist, everything he does
reflects that. A flight to Saudi Arabia may look like something more. A
meeting with other men may look like a meeting where terrorist attacks are
planned. Seemingly innocuous emails could be coded plans for attacks. A
man simply walking with his head down now seems “furtive.” And so on.
But if the person believed to be a terrorist is not a terrorist, then it does not
matter how hard investigators look: the person will not lead them to
information that can thwart attacks.
This confirmatory focus is opposite to the focus that investigators
should have: they should start by looking at actual evidence of terrorism
and then following that evidence to where it leads, which will ultimately be
to people, instead of starting by looking at people who are merely suspected
of terrorism (based on unreliable information, including hunches based on
race, religion, and nationality) and then trying to obtain evidence from
them. Starting with actual evidence of terrorism (such as may be obtained
by treating the site of a terrorist attack as a crime scene) may be more
painstaking than rounding up the usual suspects and interrogating them
until they confess, but they are more likely to be fruitful because they start
with real evidence, not the phantoms of fears and prejudices.
4. Dangers of Profiling
The roundup of suspects itself, if done with a wide net, can also
misdirect focus. Wide nets ultimately rely on “profiling,” which can be
ineffective, especially if it is race-based.188 Profiling that is inaccurate or
too general can blind law enforcement to actual terrorists and can cause
officials to let their guard down.189 A simple experiment can illustrate. Ask
a group of about twenty people in a room to look around at the other
members of the group for about fifteen seconds. Tell them you are going to
ask them a question about what they are observing. Then have them close
their eyes. Ask them (for example) how many people in the room are
from public, 8.5%; fellow terrorists, 2.4%. CHRISTOPHER HEWITT, UNDERSTANDING
TERRORISM IN AMERICA: FROM THE KLAN TO AL QAEDA 89-90 (2003). It is not clear whether
Professor Hewitt has separated cases where terrorist attacks were preempted from those
where terrorists were captured after the attack.
188SCHNEIER, supra note 184, at 134-37.
189COLE, supra note 15, at 55-56.
BRIAN J. FOLEY [Vol. 97
wearing yellow shirts. Invariably, almost no one can answer correctly. At
the outset, the group did not know what it was looking for, so it looked at
everything. Try the experiment again, only this time, tell the group
beforehand that you will ask them, after you have allowed them to look at
the other members of the group for ten seconds, how many people are
wearing, say, blue shirts. After the ten seconds have passed, have them
close their eyes, and then ask the question. Almost everyone will get the
correct answer, or at least come very close.
Next ask the group to keep their eyes closed and to report how many
people are wearing green shirts. Almost no one will be able to answer
correctly because they were never looking for green shirts. At first, they
were focused on everything and nothing, and then they were focused on
finding blue shirts.190
The implication of the exercise is that investigators must have a well-
defined idea of what they are looking for if they are going to be able to
recognize real evidence when they find it.191 Looking for everything
amounts to seeing very little.
Profiles can also waste time. If officials are looking for blue shirts,
they will overlook the red ones. Or, as security expert Bruce Schneier
wrote, “If U.S. border guards stop and search everyone who’s young, Arab,
and male, they’re not going to have the time to stop and search all sorts of
other people, no matter how hinky they might be acting.”192 Indeed, the
border guards might not even notice anyone who is acting hinky. An
inaccurate profile is worse than none at all.
Profiles can be gamed. Some profile characteristics, once known by
terrorists, can simply be avoided.193 Terrorists also can recruit among
people who lack some of the intrinsic profile factors such as race, or they
can disguise those characteristics, including even some racial
characteristics.194 In any event, we need focused intelligence in order to
know whom to detain—no matter how wide a net we cast, we cannot detain
the whole world.
190This point can be made in a number of ways. For an amusing video exercise, see
http://viscog.beckman.uiuc.edu/grafs/demos/15.html (last visited Oct. 3, 2007).
191This concept has long been understood as Plato’s “Meno Problem,” which can be
summarized as the need to have some conception of what you are looking for in order to be
able to recognize it when you find it. PLATO, MENO at 80ds-81e2.
192SCHNEIER, supra note 184, at 136-37. Schneier also notes that government officials
issued a memorandum after 9/11 that emphasized focusing on behavior, not ethnicity, “not
out of equality concerns, but for reasons of security.” Id. at 55.
193Id. at 136-37.
194Id. at 135-36.
GUANTANAMO AND BEYOND 1051
5. Investigative Atrophy
The rules also allow for easy government “victories” in that leaders
can announce they have locked up terrorists and that tribunals (such as the
CSRT) have validated the detention as accurate. The rules create the
incentive for investigators not to “rock the boat” by questioning these
earlier validations. For example, the Defense Secretary’s Memorandum
creating CSRT rules states, “Each detainee whose status will be reviewed
by a Tribunal [CSRT] has previously been determined, since capture, to be
an enemy combatant through multiple levels of review by military officers
and officials of the Department of Defense.”195 That the Defense Secretary
expects the CSRT merely to validate these earlier determinations could not
The rules effectively permit and even create the incentive for officials
to avoid any further investigation. Investigators know they can simply
coerce confessions out of prisoners and use that testimony to win their
cases. The same goes for hearsay and other weak evidence. The
Guantanamo tribunals lack the disciplining effect that stronger procedural
rules in regular courts exercise on regular prosecutors and police, who
would know that such forms of evidence would be inadmissible and that
they would have to gather more reliable evidence if they wanted to win a
conviction or even maintain a prosecution.197 Prosecutors and police in the
U.S. court system also do not go into trial knowing that the burden of proof
is in their favor, and that the judge is by design predisposed to rule for
them. They know they must hone their arguments and choose their
Operating under lax rules, investigators will know they can avoid the
effort needed to learn Arabic, develop leads, and infiltrate terror groups.198
In the short term, opportunities to learn more about terrorists will be
missed. Over the long term, investigators will not develop an accurate
195CSRT Process, supra note 57, at encl. 1 § B.
196This point has been recognized elsewhere. See, e.g., MARGULIES, supra note 3, at
197Andrew E. Taslitz, Eyewitness Identification, Democratic Deliberation, and the
Politics of Science, 4 CARDOZO PUB. L. POL’Y & ETHICS J. 271, 272 (2006) (“[I]f
[prosecutors] lose on suppression motions or face acquittals at trial because of faulty police
procedures, they have a strong adversarial incentive to pressure the police into adopting
better future investigative methodologies.”).
198John Langbein quotes Sir James Fitzjames Stephen’s recording of an observation in
1871 about police in India who tortured suspects: “It is far pleasanter to sit comfortably in
the shade rubbing red pepper into some poor devil’s eyes than to go about in the sun hunting
up evidence.” Langbein, supra note 87, at 101; see also Watts v. Indiana, 338 U.S. 49, 54
(1949) (Frankfurter, J.) (preferring evidence “independently secured through skillful
investigation” over evidence extracted solely from defendant’s own mouth).
BRIAN J. FOLEY [Vol. 97
database or the accurate institutional knowledge they need. Also, many
investigators will not develop the requisite skills for investigating terrorism,
and their existing skills will atrophy. There will grow among officials a
reluctance to unlearn the practice of coercive interrogation and reliance on
weak evidence and replace these habits with effective investigative skills.199
Officials will find themselves less and less able to sort prisoners accurately,
exacerbating the dangers that the lack of accurately identifying terrorists
creates in the first place.
6. A Possible Counterargument
A possible counterargument is that these dangers may be avoided if
there are additional, separate rules for determining who needs merely to be
detained and who should be both detained and interrogated. Higher
evidentiary standards could be used to determine who should be
interrogated, though these standards could not guarantee that some innocent
suspects would not be interrogated.200 Then again, what interest does the
government have in imprisoning people who are very likely not involved in
terrorism or who lack relevant knowledge? It wastes resources and thus
impedes the war on terror. There are also other dangers from the “false
positives” that indiscriminate detention creates.
C. DANGERS TO INVESTIGATORY EFFECTIVENESS WHERE RULES
PERMIT MERE “PREVENTIVE DETENTION” (CSRT, ARB)
Rigged rules are less dangerous if the sole purpose of detention is to
incapacitate (as opposed to interrogate) known or suspected terrorists.
Indeed, incapacitating the right people might successfully preempt an attack
or at least mitigate its destructiveness. That is because the problems
described above stem from interrogation and, in particular, coercive
interrogation.201 However, there are still dangers arising from mere
detention under a Guantanamo-style policy. If the government can lock
people up based on unreliable evidence, neither the government nor the
public can be sure the government has identified and incapacitated the right
ones. Officials and the public nevertheless could be lulled into believing
199Langbein, supra note 87, at 101 (noting that “[a]nother insight from history is the
danger that, once legitimate, torture could develop a constituency with a vested interest in
perpetuating it,” as has occurred in institutionalizing forfeiture laws in the War on Drugs,
and plea bargaining).
201It is important to keep in mind that some people may confess falsely even absent
government coercion. See, e.g., Colorado v. Connelly, 479 U.S. 157, 160-61 (1986)
(schizophrenic defendant approached police officer and confessed to murder because “voice
of God” told him to confess or commit suicide).
GUANTANAMO AND BEYOND 1053
that these detentions mean the threat has been decreased and that all
possible terrorists have been netted, thereby reducing vigilance.
But talk of mere detention is unrealistic in what could be described as
an intelligence war.202 It is hard to imagine that officials would refrain from
interrogating people who fit their profile of a suspected terrorist. After all,
the person potentially has information that could prevent a terrorist attack.
Also, recent U.S. history shows an “unholy trinity” of detention,
interrogation, and torture, suggesting that these things are inextricably
linked.203 This brings us back to the problems described in the previous
section: detaining a large number of people, even if the initial purpose was
merely to incapacitate them, could lead to that investigative fog and atrophy
that the widespread, coercive interrogation of wrongly detained people
creates. Casting a wider net leads to more interrogations, more confessions,
and more confusion.
Casting a wide net that ensnares false positives, therefore, does not
exact costs only from the people who are wrongly detained. Focused
investigations would avoid many of the dangers discussed above, and they
stand a more reasonable chance of capturing actual terrorists.
D. DANGERS TO INVESTIGATORY EFFECTIVENESS WHERE THE
PURPOSE OF THE RULES IS TO ADJUDICATE GUILT (MILITARY
Many of the problems that result from the CSRT’s rigged rules are
also obtained when rules designed for adjudicating guilt for terrorism
crimes are rigged, such as in the military commissions. But there are
additional dangers that are unique to military commissions.
202Justice Stevens seemed to attempt this distinction in his dissenting opinion in
Rumsfeld v. Padilla, 524 U.S. 426, 465 (2004), writing, “Executive detention of subversive
citizens . . . may sometimes be justified to prevent persons from launching or becoming
missiles of destruction. It may not, however, be justified by the naked interest in using
unlawful procedures to extract information. Incommunicado detention for months on end is
such a procedure.” Perhaps Stevens means an extremely brief detention, which may seem
reasonable at first blush, but on further consideration it seems unlikely that authorities would
release the person after the threat he represented was over—how would the threat be over in
a world where, as we hear often from officials, men with boxcutters can turn commercial
aircraft into missiles? How could the man be allowed to communicate with the outside
world, when such communications might be coded information enabling upcoming attacks?
My point is not that I agree with these arguments—reminiscent of Chicken Little—but to
point out their prevalence and the inability to counter them when scarcely any evidence may
be used to detain people who putatively represent “threats.”
203See Jennifer Van Bergen & Douglas Valentine, The Dangerous World of Indefinite
Detentions: Vietnam to Abu Ghraib, 37 CASE W. RES. J. INT’L L. 449 (2006) (analyzing
detention policies from Vietnam onward). The term “unholy trinity” comes from Guiora &
Page, supra note 169.
BRIAN J. FOLEY [Vol. 97
1. False Confessions and Bearing False Witness
The fact that military commissions mete out punishment can end up
deterring prisoners from divulging real information, or at least, self-
incriminating information, to their captors. It is quite likely, therefore, that
“cooperating” prisoners are giving out false incriminating information
about other prisoners and are just “jailhouse snitches.”204 The prisoners
against whom such testimony is used (at the CSRT, in military
commissions) might actually have nothing to do with terrorism. This can
lead to the investigative confusion, missed opportunities, and investigative
atrophy described above.
On the other hand, some prisoners might falsely incriminate
themselves in order that they may be punished by the death penalty. This
assertion may sound strange at first blush, but prisoners might want to
escape indefinite detention. There have, in fact, been several suicide
attempts at Guantanamo.205 The phenomenon of preferring death to life
imprisonment extends even to our own criminal justice system, where
conditions of confinement are generally better than at Guantanamo.206
There are reported cases where convicted criminals waived their right to
appeal their death sentence in order to avoid having the sentence reduced to
life imprisonment, and courts did not find such waiver unreasonable in light
of the overwhelming, ever-present agony that lifelong imprisonment
204See Hoffa v. United States, 385 U.S. 293, 320 (1966); ROBERT M. BLOOM, RATTING:
THE USE AND ABUSE OF INFORMANTS IN THE AMERICAN JUSTICE SYSTEM (2002); Clifford
Zimmerman, Back from the Courthouse: Corrective Measures to Address the Role of
Informants in Wrongful Convictions, in WRONGLY CONVICTED: PERSPECTIVES ON FAILED
JUSTICE 199 (Saundra D. Westervelt & John A. Humphrey eds., 2001); Alexandra Natapoff,
Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U.
L. REV. 107 (2006). It has long been understood that an informant that gives information
that incriminates other people is less reliable than when the informant gives information that
also incriminates himself. See Williamson v. United States, 512 U.S. 594, 600 (1994)
(“Even the confessions of arrested accomplices may be admissible if they are truly self-
inculpatory, rather than merely attempts to shift blame or curry favor.”); see also FED. R.
EVID. 804(b)(3) (recognizing an exception to rule against hearsay for “[a] statement which
was at the time of its making so far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another, that a reasonable person in the declarant's
position would not have made the statement unless believing it to be true.”).
205MARGULIES, supra note 3, at 138-39.
206Tung Yin, Coercion and Terrorism Prosecutions in the Shadow of Military Detention,
2006 BYU L. REV. 1255, 1277-81 (2006) (comparing these conditions and concluding that
U.S. prisons appear to provide better conditions than those suffered by enemy combatants).
207See, e.g., Autry v. McKaskle, 727 F.2d 358, 363 (5th Cir. 1984); Smith v. State, 686
N.E.2d 1264, 1273 (Ind. 1997); Stevens v. State, 691 N.E.2d 412, 430 (Ind. 1997); People v.
Guzman, 755 P.2d 917, 947-48 (Cal. 1988).
GUANTANAMO AND BEYOND 1055
2. Killing the Goose
The fact that military commissions can sentence prisoners to death
presents an additional problem. Given that the military commissions have
some protections for accuracy, such as assistance of counsel and the
“beyond a reasonable doubt” standard, someone convicted by a military
commission is still, theoretically at least, more likely to be an actual
terrorist (depending on the crime he is convicted of committing) than
someone who has been detained and who lost his challenge in the CSRT.208
That means that enemy combatants convicted of actual crimes are, in some
cases, more likely to be a rich source of intelligence information than other
detainees. To kill such a person seems counterproductive in an intelligence
war. Such prisoners should be kept for further questioning. How can U.S.
officials know they actually have learned all the prisoner knows? Why not
keep the prisoner around as a sort of consultant, to apply his expertise and
knowledge to help analyze new information? Again, the need for accuracy
in military commissions and the CSRT becomes clear: officials would want
to be sure that their consultant is not a charlatan.
Here the death penalty represents retributive emotion overpowering
reason and the desire for abstract justice overpowering the need for genuine
3. Public Cynicism
Rigged military commissions are ultimately “show trials” or
“kangaroo courts,”209 which, like mass detentions, can lull investigators and
citizens into thinking they are winning the War on Terror. The victories
could also have a different effect: if the trials are obviously rigged, in the
sense that a majority of citizens see that they are rigged, cynicism can
develop. Such cynicism could undercut any good-faith efforts by officials
that might actually be effective to combat terrorism.210
208As of this writing, just one person has been convicted by military commission; that
conviction was the result of a plea bargain. See Office of the Assistant Secretary of Defense
(Public Affairs), News Release, Detainee Convicted of Terrorism Charge at Guantanamo
Trial, Mar. 30, 2007, available at http://www.defenselink.mil/releases/release.aspx?
releaseid=10678. The Department of Defense website has posted the charges against two
other defendants awaiting trial by military commission, Salim Ahmed Hamdan and Omar
Ahmed Khadr. See U.S. Dep’t of Defense, Military Commissions: Commission Cases,
available at http://www.defenselink.mil/news/commissions.html.
209See David Glazier, Kangaroo Court or Competent Tribunal? Judging the 21st
Century Military Commission, 89 VA. L. REV. 2005, 2093 (2003) (“A military commission
trial falling short of the full UCMJ [Uniform Code of Military Justice] standard is all but
certain to be pejoratively judged as a ‘kangaroo court’ in the court of public opinion.”).
210See generally Margaret L. Paris, Trust, Lies, and Interrogation, 3 VA. J. SOC. POL’Y &
L. 3 (1996) (discussing the Fifth and Sixth Amendments); Scott Sundby, “Everyman’s”
BRIAN J. FOLEY [Vol. 97
E. DANGER THAT RIGGED RULES POSE FOR THE NATION’S ABILITY TO
CREATE EFFECTIVE ANTITERRORISM INVESTIGATION POLICY
1. “Success” Breeds “Success”
Reports of government victories at the CSRT and military
commissions can translate into unearned and unwarranted political gain: the
public, believing that the government is winning the war on terror, will
approve of the methods and perhaps will approve—or even demand—more
intense versions of the “successful” methods. The government could end
up with more prisoners, many of whom are likely innocent, and use even
more coercive interrogations to obtain the “evidence” to convict them. The
government will get even more false leads, with all the attendant problems.
And even worse rules could end up being developed to shield these further
mistakes from scrutiny.211 Ultimately, such an increasingly ineffective
policy could become institutionalized and entrenched because of its
2. Lack of Oversight of the Executive
Guantanamo makes the Executive the legislature, the judge, the jury,
and the executioner.212 This problem is not simply formal. With checks
and balances annihilated, the Executive, even if it is well-intentioned, could
be doing a lousy job, but no one can know for sure. Obscuring the failures
and ineffectiveness of Executive policy from the scrutiny of other branches
of government and the public makes it hard for the nation to change course
from a counterproductive and dangerous policy.
Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 COLUM.
L. REV. 1751, 1777-1802 (1994) (discussing the Fourth Amendment); Samantha Power, Our
War on Terror, N.Y. TIMES SUNDAY BOOK REV., July 29, 2007, at 1 (noting generally the
danger that citizens who reject their government’s failed policies designed to combat a threat
might also reject other policies, even well-designed ones, and might even come to believe
the threat is non-existent). In addition, speculation (of the sort often cavalierly rejected by
many people and pundits as “conspiracy theories”) could develop over what the
government’s real motivations are, which can further disable any good-faith government
211See supra Part I.C.
212See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979) (finding the magistrate
was not neutral and detached where he “allowed himself to become a member, if not the
leader, of the search party which was essentially a police operation” in search of store for
obscene materials); Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971) (finding a search
warrant issued by an attorney general invalid because he “was actively in charge of the
investigation and later was to be chief prosecutor at trial”).
GUANTANAMO AND BEYOND 1057
3. Lack of Expertise and Misplaced Focus
The Executive created the Guantanamo policy in secret, and the extent
to which it consulted relevant experts is unknown. It appears that a non-
expert, David Addington, an unelected, largely unknown lawyer in the
office of the Vice President, created this policy.213 It is thus perhaps not
surprising that the many dangers the policy creates apparently were not
considered or even recognized. Instead, Congress should set the policy. It
is designed to deliberate, consider implications, and engage in fact-finding
by taking testimony from experts, affected individuals, and other
Nor should the Executive be spending its time writing judicial rules, a
task that is usually the province of Congress and the Judiciary. The most
recent incarnation of the Military Commission rules is 238 pages long.214
One might ask why the Executive is writing rules that merely make it easy
for it to validate its (deeply flawed) terror-fighting efforts. Existing rules
should be applied unless proven to be ineffective, or unless, ex ante, they
can be shown as highly likely to fail. If deemed ineffective, the existing
rules should be tinkered with and tried again. Eschewing this process and
creating a new justice system out of whole cloth was a rash overreaction.215
4. A Scary Argument Lurks
If the present policy at Guantanamo is widely seen as effective, then
there will be reason to argue that it should be extended broadly to U.S.
citizens. 216 The argument is that if, as the Bush Administration has claimed
213Jane Mayer, The Hidden Power: The Legal Mind Behind the White House’s War on
Terror, NEW YORKER, June 26, 2006, at 44.
214See UNITED STATES ARMED FORCES, supra note 128.
215See Filler, supra note 26, at 414-19; Parry, supra note 2, at 798-97.
216Although at least three U.S. citizens have been subjected to indefinite detention as
enemy combatants (José Padilla, Yaser Esam Hamdi, and Ali Saleh al-Marri), detentions of
U.S. citizens have not been widespread. Nevertheless, the Bush Administration has argued
in open court that it has the power to detain any U.S. citizen it deems an enemy combatant.
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 475 (D.D.C. 2005). The Supreme
Court’s decision in Hamdi is not reassuring to those who believe that the U.S. government
lacks such power; in Hamdi, the plurality opinion concluded that a U.S. citizen could be held
indefinitely as an enemy combatant (as defined in that opinion), subject only to the
plurality’s suggested blueprint rules that spawned the CSRT. See Hamdi v. Rumsfeld, 542
U.S. 507, 533-35, 538-39 (2004); see also discussion supra Part II.A.1.
There is likewise a lack of reassurance for U.S. citizens in that a prominent legal scholar,
Bruce Ackerman, has proposed legalizing such roundups of U.S. citizens and non-citizens
after a major terrorist attack. See BRUCE ACKERMAN, BEFORE THE NEXT ATTACK:
PRESERVING CIVIL LIBERTIES IN AN AGE OF TERRORISM 48-58 (2006). Ackerman proposes
limiting any such detention to forty-five days, during which the government would have the
chance to assemble evidence against the detainee; at the end of the period, if no evidence is
BRIAN J. FOLEY [Vol. 97
before the Supreme Court,217 it is too dangerous to give foreign suspects a
“fair” chance to be released and too dangerous to give them access to
information to be used against them (in that it is classified and that to reveal
it would compromise sources and methods and tip off terrorists218), and if it
is too dangerous to give them an attorney (because the attorney might pass
messages and information, even unwittingly, to compatriots of the
suspected terrorist219), then these dangers are even greater when the suspect
is a U.S. citizen. Terrorists who are U.S. citizens can more easily
“infiltrate” the United States (they are already here) and can more easily “fit
in” (they already do). They have U.S. passports and can be highly mobile
without raising suspicions. Letting anyone who is merely suspected of
adduced, the detainee would go free. The detainee would also be compensated $500 per day
of detention. Yet it is uncertain that these dragnets would even be effective, even according
to Ackerman himself:
[After an attack,] the security services will be thrashing about a good deal. If they had been on
top of the conspiracy, they would have intervened beforehand. So they are almost certain to be
in the dark during the early days after a terrorist attack. Nevertheless, early dragnets may well be
functional, and not only because they provide appropriate television footage for calming public
anxieties. While many perfectly innocent people will be swept into the net, the “usual suspects”
identified by counterintelligence agencies may contain a few genuine conspirators. If we are
lucky, the detention of a few key operators can disrupt existing terrorist networks, reducing the
probability of a quick second strike and its spiral of fear.
Id. at 84. Ackerman fails to envision the downsides of a mass detention policy as are
described in this Article. Ackerman justifies the dragnet by arguing that “[i]f we are lucky,
the detention of a few key operators can disrupt existing terrorist networks”; it is doubtful
this strikes an appropriate balance against them. See David Cole, In Case of Emergency,
N.Y. REV. OF BOOKS, July 13, 2006, at 53 (criticizing Ackerman’s book); see also David
Cole, The Priority of Morality: The Emergency Constitution’s Blind Spot, 113 YALE L.J.
1753, 1785 (2004) (critiquing Ackerman’s proposal for an “emergency constitution” when
the proposal was at an earlier stage and stating, “At bottom, what is most troubling about
Ackerman's proposal is its implicit normative judgment: that it is permissible to lock up
human beings without any showing that they are actually dangerous in order to ‘reassure’ the
American public in the wake of a terrorist attack. Given the serious deprivation that
incarcerating a human being entails, our manifest inability to predict the future, and the
history of abusive mass preventive detention campaigns in the past, we should be extremely
reluctant to authorize detention in the absence of a threshold showing of dangerousness, and
we should insist on prompt procedural protections designed to reduce the likelihood that
persons who pose no risk of danger will be detained.”). Cole’s critique is based primarily on
morality, as his title indicates, not on the dangers I discuss in this Article.
Ultimately, counterterrorism policies may exist on a very slippery slope. For an
argument that the investigative methods originally developed to gather evidence about
terrorism from non-citizens and citizens alike will ultimately be used as part of regular
criminal (read: non-terrorist) investigations, see Jack M. Balkin & Sanford Levinson, The
Processes of Constitutional Change: From Partisan Entrenchment to the National
Surveillance State, 75 FORDHAM L. REV. 101 (2006).
217See Hamdi, 542 U.S. at 537-38; MARGULIES, supra note 3, at 34-40.
218See Hamdi, 542 U.S. at 537-38.