Guantanamo and Beyond: Dangers of Rigging the Rules



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 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.

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    ABSTRACT: The turnout forces us to ask why habeas has become a matter of such public concern. I take it as a given it is not the Great Writ of Liberty in itself that attracts so much attention. As much as I would like to believe otherwise, I find it improbable that the American public has suddenly developed an intense and abiding interest in King John at Runnymede. Obviously, the curiosity comes from the more recent and unaccustomed prominence of habeas in our great national debate. And since the most visible and controversial use of habeas these past seven years has been in challenges to the Bush administration's post-9/11 detention policy, and in particular to its imprisonment of foreign nationals at 3. What are the lessons from detaining non-U.


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