Abstract

http://ssrn.com/abstract=1299740
 
 

Footnotes (34)



 


 



Military Commissions and National Security Courts after Guantanamo


Amos N. Guiora


University of Utah - S.J. Quinney College of Law

November 11, 2008

Northwestern University Law Review, Colloquy, Vol. 103, p. 199, 2008
U of Utah Legal Studies Paper No. 057-08-11

Abstract:     
In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States. While various terms have been used to label detainees including enemy combatant, illegal belligerent, and enemy belligerent, all fail to define the rights such individuals should be granted. Admittedly, this process has been made more difficult by a continued inability - perhaps unwillingness - to define the conflict in a consistent manner. Is this a war? Is this a "war on terror"? Is this police action? Considering this definitional uncertainty, the critical question becomes where to appropriately try these detainees - how to try these individuals while protecting classified intelligence and also maintaining individual rights.

In this essay, I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather they are a "hybrid" of both. To that end, I recommend that the appropriate term for post 9/11 detainees is "individuals suspected of involvement in terrorism." This definition adopts aspects from both the prisoner of war and criminal law paradigms, thereby creating what I have called a "hybrid paradigm." The hybrid paradigm seeks to balance - or maximize - the legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, it seeks to move beyond the amorphousness that has defined much of the debate over the last seven years.

To try these individuals, I suggest a hybrid "domestic terror court" that would allow for an in camera review of confidential intelligence information presented by the prosecutor and a representative of the intelligence services. A properly constituted domestic terror court - comprised of judges schooled in understanding intelligence reports and intelligence gathering procedures, and aware of the necessity of preserving constitutional rights - is the proper starting point in moving forward with post 9/11 terrorist prosecutions. The proposed hybrid paradigm will ensure both the state's obligations to keep intelligence and matters of national security confidential as well as the defendant's right to a fair trial.

Number of Pages in PDF File: 10

Keywords: Military commissions, national security, national security court, hybrid paradigm, detainees, trying detainees, Boumediene, post 9/11 detainees, rights granted to suspected terrorists, classified intelligence, Article III courts, domestic terror courts, preventive detention

JEL Classification: K10, K14, K19, K33, K30, N40

Accepted Paper Series


Download This Paper

Date posted: November 13, 2008 ; Last revised: June 29, 2010

Suggested Citation

Guiora, Amos N., Military Commissions and National Security Courts after Guantanamo (November 11, 2008). Northwestern University Law Review, Colloquy, Vol. 103, p. 199, 2008; U of Utah Legal Studies Paper No. 057-08-11. Available at SSRN: http://ssrn.com/abstract=1299740

Contact Information

Amos N. Guiora (Contact Author)
University of Utah - S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States
801-581-4295 (Phone)
801-581-6897 (Fax)
HOME PAGE: http://www.law.utah.edu/profiles/default.asp?PersonID=6581&name=Guiora,Amos..

Feedback to SSRN


Paper statistics
Abstract Views: 2,110
Downloads: 244
Download Rank: 71,409
Footnotes:  34

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.219 seconds