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
BRIAN J. FOLEY [Vol. 97
B. QUESTION THE EFFECTIVENESS OF TORTURE AND COERCIVE
There is a question that must be addressed when considering changing
the rules to promote more effective interrogation: Do torture and coercive
interrogation methods that might not rise to meet the legal definition of
torture actually work? This Article has focused on the likelihood that
torturing or using coercive interrogation methods on people who lack
knowledge of terrorism can lead to false confessions and to instances of
false witness, which translate into false leads for investigators. I have
argued that the problem of interrogating a high number of people who lack
relevant knowledge can be corrected or at least reduced significantly by
new rules that emphasize accurate detentions. If that is the case, then
should such techniques be used on people who do have relevant
knowledge? Do these methods help extract this knowledge?244 And even if
those methods do sometimes work, do the various costs of using such
methods outweigh their benefits?245 Are there alternative methods that
work better, or as well, or perhaps almost as well (say, if we are to entertain
having some scruples, even at a slight cost to investigative effectivness),
and carry fewer downsides and dangers?
We would have to inquire into whether people who do know about
terrorism are nevertheless more likely to give false information instead of
true, to end the mistreatment. There is also the possibility that an actual
terrorist might serve up false information in response to torture, specifically
for the purpose of misleading investigators, perhaps even to send them
scurrying in the opposite direction of a planned attack.246
244See supra note 167 and accompanying text (discussing questionable reliability of
coerced confessions). Although the sources discussed in note 167 express that regarding the
effectiveness of coercive interrogation, “more research is necessary,” Otis, supra note 167, at
xix, and despite my question, we probably do not need to be agnostic in contemplating an
interrogation regime designed to prevent terrorist attacks. We certainly should be cautious in
using such techniques, as incorrect information can mislead investigators and ultimately be
more dangerous than if the investigators had elicited no information at all from the suspect.
The burden of proof should be on those proposing these measures be used against terrorism
245See Rumney, supra note 16, at 489 (“When one examines evidence regarding torture,
it becomes apparent that it is used for a variety of reasons, including: the victimization of
political opponents, human rights campaigners, and journalists; the general suppression of
dissent; as well as the persecution of cultural, racial, and sexual minorities.”).
246Also, it is important to keep in mind there is no guarantee that an actual terrorist will
divulge actual intelligence under coercion; the contrary might be more likely. See Guiora &
Page, supra note 169, at 446-47 (possible unconscious or conscious misleading of
investigators “in and of itself, is cause enough to forbid torture”); Langbein, supra note 87,
at 101 (“Terrorists willing to die for their cause would also be willing to plant false tales
GUANTANAMO AND BEYOND 1065
Torture may have attained the status of a taboo subject,247 but the fact
remains that the U.S. government has been engaging in torture without
asking and answering such “taboo” questions. Leaders instead appear to
base policy decisions on mere intuitions of the necessity and effectiveness
of torture.248 If there are questions not merely about the moral or legal
permissibility of using the techniques but also about their effectiveness,
those questions should be addressed fully and openly.249
C. IMPROVE MILITARY COMMISSIONS, OR BETTER, SCRAP THEM
Policymakers should decide whether military commissions are even
necessary; they probably are not, as Dan Filler argued more than ten years
ago when similar tribunals were suggested after the 1995 Oklahoma City
terrorist bombing.250 U.S. federal courts are likely capable of trying enemy
combatants who are charged with war crimes.251 The federal courts could
247Rumney, supra note 16, at 510 n.145.
248See generally THE TORTURE PAPERS, supra note 33 (containing the publicly released
documents concerning the Bush Administration’s justifications for torture). Certainly, I do
not mean to suggest that the United States engage in torture, and I would not want to see my
proposal lead to a legalization of torture. However, the decision is not mine alone.
249See generally Otis, supra note 167 (starting such discussion). The document itself is
agnostic about the effectiveness of torture. See id. However, discussions of the document
by some of the experts involved months after its publication were less agnostic: some of the
techniques were lambasted as “outmoded, amateurish, and unreliable.” Scott Shane & Mark
Mazzetti, Advisers Fault Harsh Methods in Interrogation, N.Y. TIMES, May 30, 2007, at A1.
The best antidote to the use of torture would be a widespread understanding that torture is
250See Filler, supra note 26, at 410, 418.
251Id. The benefits of using federal courts are lost when there exists a parallel, rigged
justice system. The government’s ability to send those arrested for terrorism crimes to
Guantanamo and its justice system may function as a coercive measure which essentially
blackmails the arrested individuals into pleading guilty in the regular justice system. See
Yin, supra note 206, at 1297-1309. Prosecutors can extract pleas from terrorism suspects by
reminding them that should they refuse the plea, the prosecutor can simply drop the charges
and allow the military to arrest the suspect as an enemy combatant, after which he would be
tried in a military commission with a minimal chance of a fair trial. Id. at 1281. See also
Carl Takei, Terrorizing Justice: An Argument That Plea Bargains Struck Under the Threat
of “Enemy Combatant” Detention Violate the Right to Due Process, 47 B.C. L. REV. 581
(2006) (arguing that plea bargains should be per se unenforceable when defendant is
threatened with enemy combatant status).
In such a situation, the idea commonly understood by the public about plea bargains—
that they are obtained because the defendant sees the evidence against him is
overwhelming—can be exploited for political gain by government officials. These officials
may contend the defendant was indeed a terrorist and the plea was a government victory in
the War on Terrorism, but, in reality, the defendant merely was faced with a choice of evils.
(Of course, many defendants in our regular criminal justice system plead guilty when they
are not because they believe—for various reasons, including lack of resources—they cannot
fight the charges and evidence against them.) See Rodney Uphoff, Convicting the Innocent:
BRIAN J. FOLEY [Vol. 97
reach a more accurate and legitimate result than military commissions.
They could also use existing procedures to protect secrecy.252
The number of such enemy combatants eligible for trial by military
commission appears to be low (at least as of this writing), which makes this
argument even more compelling; it makes little sense to create an entirely
new justice system to try a mere handful of people. Even if the number
were not so low, the regular court system could still be used, with minor
adjustments if necessary. For example, the number of real judges and real
courtrooms could be increased or existing resources could be reallocated,
which would reflect the relative importance of trying terrorist suspects.
D. THE COURT AND CONGRESS
It seems clear from the foregoing that many of the issues raised in this
Article cannot be addressed adequately in court proceedings, especially
when what is necessary, ultimately, is to rewrite the rules, an act of
policymaking: courts generally say yea or nay to the particular rule that is
being challenged but do not write—or rewrite—the rule itself.253 Also, any
legal challenge to the CSRT and military commission rules must overcome
peremptory hurdles such as determining which parts of the U.S.
Constitution, if any, extend to non-citizen detainees; whether the Executive
has the power to create such rules; and whether a court should meddle in
such a policy, especially where, as with the military commission rules,
Congress has agreed to them.254 Many court challenges will be by nature
piecemeal, such as the prospective challenge to the military commission
Aberration or Systemic Problem?, 2006 WIS. L. REV. 739, 762-63 (2006). However, the
practical effect of this coercion is not clear, given that a person released from a federal
prison after serving a term for terrorism crimes could simply be captured and detained
indefinitely as an enemy combatant. Perhaps a defendant would plead guilty to serve time in
a regular prison, where conditions are better than those for enemy combatants and take his
chances that the government will not dispatch him to Guantanamo at the end of his sentence.
See Yin, supra note 206, at 1277-81 (describing how a defendant contemplating a plea
bargain would likely regard confinement in a U.S. prison as a better option than confinement
252See generally Note, Secret Evidence in the War on Terror, 118 HARV. L. REV. 1962,
1964-71 (2006) (describing framework and assessing constitutionality of use of secret
evidence in U.S. criminal, military, and immigration proceedings).
253But see Hamdi v. Rumsfeld, 542 U.S. 507, 533-35 (2004) (providing dicta which
served as a blueprint for the CSRT).
254See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (Jackson, J.,
concurring). This will be one of the many questions courts will need to resolve after passage
of the Military Commissions Act. A major question is whether the Constitution provides
non-citizens with the right to habeas corpus, which the Supreme Court did not address in
Rasul v. Bush, 542 U.S. 466 (2004); see also Brian G. Slocum, The War on Terrorism and
the Extraterritorial Application of the Constitution in Immigration Law, 84 DENV. U. L. REV.
GUANTANAMO AND BEYOND 1067
rules’ use of secret evidence that was asserted in Hamdan v. Rumsfeld.255
The Court held that the military commissions may not use secret evidence,
because using such evidence contravenes the Uniform Code of Military
Justice256 and the Geneva Conventions.257 The question of whether the
Constitution prohibits such evidence was not addressed.
Subsequently, and in response, Congress passed the Military
Commissions Act, which does not sufficiently protect against use of secret
evidence.258 This statute replaces the relevant portions of the UCMJ and
Geneva Conventions (which are treated as a statute). It is possible that the
Supreme Court will reverse any sentence meted out by a military
commission that is based in whole or in part on secret evidence, but that, of
course, is unclear because it is uncertain whether and to what extent the
Constitution applies. It will take time for such a challenge to reach the
Supreme Court. In that time, if we rely on the courts alone, the flawed
interrogations and investigations and hence the danger of terrorism will
Here the courts are probably unable to judge fully the effectiveness of
the CSRT and military commission rules and to draft new ones,
notwithstanding Justice O’Connor’s preliminary outline in dicta in
Hamdi.259 Nevertheless, the Court could come closer to the issue of
effectiveness by achieving a more incisive understanding of the
government’s interest in these cases. In Hamdi, the interest was set forth by
Justice O’Connor as preventing enemy combatants from returning to the
battlefield.260 But the government’s interest in detaining enemy combatants
is at once broader and narrower. Broadly, it is the effective waging of the
war on terror. Narrowly, it is effective incapacitation and interrogation of
enemy combatants as part of investigating terrorist networks for the purpose
of preventing attacks—as distinguished from investigating past attacks for
the purpose of punishing the perpetrators (where prevention of future
attacks is but one of the goals, as fostered through punishment’s aims of
specific and general deterrence). The Court could conclude that the current
255126 S. Ct. 2749, 2764 (2006).
256Id. at 2792-93.
257Id. at 2795-99.
258See Military Commissions Act of 2006, Pub. L. No. 109-366, §§ 949d(f), 949j, 120
Stat. 2600 (2006) (permitting the military commission and the government to withhold
classified evidence from the accused—which may negatively affect the accused’s efforts to
cross-examine or otherwise rebut or explain).
259See discussion supra Part II.A.1.
260Hamdi v. Rumsfeld, 542 U.S. 507, 518-21. The purpose of interrogation was not
seriously considered but was mentioned offhand: Justice O’Connor wrote, without more,
“Certainly, we agree that indefinite detention for the purpose of interrogation is not
authorized.” Id. at 521.
BRIAN J. FOLEY [Vol. 97
policy is counterproductive, based on arguments such as those I have raised
in this Article. Therefore, the CSRT and military commissions can be seen
as not serving the government’s interest or at least as failing to serve an
important aspect of the government’s interest.261 That is, the purported way
of serving this interest, the CSRT and military commission rules, could be
more smartly tailored toward meeting the government’s interests in
effective incapacitation, effective
At the end of the day, however, it seems more appropriate for
Congress to tailor the rules. Congress has such power, outlined in the
Constitution,263 and which it has exercised already in the Detainee
Treatment Act of 2005 and the Military Commissions Act of 2006. The
Supreme Court in Hamdan acknowledged such power on the part of
Congress.264 Deciding on a set of rules that will serve this crucial interest
should be the product of a far-reaching discussion that focuses on any such
policy’s effectiveness in preventing terrorism.
interrogation, and effective
261See MARGULIES, supra note 3, at 29 (noting that government has no interest in
262See Kate Stith, The Government Interest in Criminal Law: Whose Interest Is It,
Anyway?, in PUBLIC VALUES IN CONSTITUTIONAL LAW 141-47 (Stephen E. Gottlieb ed.,
1993) (arguing that the public’s safety from private crime and violence is one of the
“government interests” in constitutional cases addressing criminal procedure); see also
Kermit Roosevelt III, Guantanamo and the Conflict of Laws: Rasul and Beyond, 153 U. PA.
L. REV. 2017, 2068-71 (2005) (suggesting a conflict-of-laws approach in determining which
constitutional rights should apply to detainees and arguing that this approach would allow
for consideration of American values, and the desire of Americans to have a government that
treats non-citizens in accordance with these values).
A separate argument could be based on unpacking the assumptions underlying the Justice
O’Connor’s opinion in Hamdi that the procedures outlined in that decision are “necessary”
in given instances. See Hamdi, 542 U.S. at 533-34 (“[T]he 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 . . . . Hearsay, for example, may need to be accepted as the most reliable
available evidence from the government in such a proceeding.”) There is likely no need to
“institutionalize” the CSRT process for all prisoners who are U.S. citizens; if the words
“exigencies” and “need” are to have any meaning, then the CSRT should be used only for
those who cannot, for a reasonable period, be brought to a U.S. court. An argument can also
be made that, even if a U.S. citizen is subjected to a CSRT, once the exigency ends, the U.S.
citizen is entitled to access a U.S. court. Such an argument does not help the non-citizen
prisoners directly, but it could inform arguments made on their behalf and could also inform
political decisions about the need vel non for limiting the process provided for these non-
263See U.S. CONST. art. I, § 8, cls. 10, 11, 14 (providing Congress with the “Power” to
“define and punish . . . Offences against the Law of Nations,” “make Rules concerning
Captures on Land and Water,” and “make Rules for the Government and Regulation of the
land and naval Forces”); see also id. at art. I, § 8, cl. 18 (Necessary and Proper Clause).
264See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2773-74 (2006).
GUANTANAMO AND BEYOND 1069
Since 9/11, Americans have largely gone along with the Executive’s
decision to create its own methods and rules to decide who should be
imprisoned, interrogated, and perhaps even tried as a terrorist, and how that
should be done. The CSRT rules that have developed as a putative check
on the accuracy of the decision to imprison someone as an enemy
combatant simply make it easy for the Executive to assert that its decision is
correct. The military commission rules simply make it easy for the
Executive to win its cases whenever it decides to prosecute enemy
combatants for particular war crimes. The need for these rules to promote
accuracy—and the contribution that accuracy could make to the war on
terror—has not been understood. The question of whether these rules are
effective in preventing terrorist attacks has gone unasked.
I have argued that the present rules foster inaccurate, wasteful wild
goose chases and snipe hunts, and that what is needed, therefore, are rules
that promote accuracy. No one is truly benefited from detaining people
who are not involved in and lack relevant knowledge of terrorism. No one
is benefited by the exponential multiplication of false leads that results from
the coercive interrogation of such prisoners. These are not difficult points
to understand. Now that the shock and fear that followed 9/11 have begun
to fade, it is hoped that cooler, more rational heads will prevail and will end
the dangerous, counterproductive policy at Guantanamo. It is also hoped
that, beyond Guantanamo, and indeed within our own domestic criminal
justice system,265 when proposals are made to loosen the strictures of our
long-used criminal procedure and evidence rules, these proposals will be
met with questions of whether loosening these standards will be effective.
Furthermore, I hope that it will be widely understood that judicial
protections do not exist merely to protect the rights of suspected criminals
and terrorists but serve the larger goal of protecting the public by helping to
ensure that investigations are accurate and effective.
265Our domestic criminal justice system has been moving to a preventive paradigm. See
Markus Dirk Dubber, Policing Possession: The War on Crime and the End of Criminal Law,
91 J. CRIM. L. & CRIMINOLOGY 829, 849 (2001) (arguing that the U.S. criminal justice system
is “built to incapacitate the greatest number of . . . individuals for the longest possible time
with the least effort”).
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