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Forum Choice for Terrorism Suspects

Aziz Z. Huq

University of Chicago - Law School

March 28, 2012

Duke Law Journal, Forthcoming
U of Chicago, Public Law Working Paper No. 38

What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably be analyzed through an institutional-design lens. A key institutional-design decision is whether or when to create jurisdictional redundancy. When, that is, should the existence of overlapping jurisdictions vest the government with a threshold choice of forums or an option to retry a suspect who has been acquitted in an initial process? Jurisdiction redundancy is pervasive. But conventional wisdom suggests it is unwise. This Article demonstrates, however, that overlap between forums has complex direct and indirect effects on the accuracy and cost of terrorism-related adjudication. It presents a comprehensive framework for analyzing redundancy by exploring how it influences error rates, system maintenance costs, externalities, information production, and incentives. Applying that framework, I contend that the conventional wisdom is flawed. Pervasive redundancy has surprising merit in contrast to two leading reform proposals that would eliminate most jurisdictional overlap.

Number of Pages in PDF File: 99

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Date posted: March 28, 2012  

Suggested Citation

Huq, Aziz Z., Forum Choice for Terrorism Suspects (March 28, 2012). Duke Law Journal, Forthcoming; U of Chicago, Public Law Working Paper No. 38. Available at SSRN: http://ssrn.com/abstract=2030303 or http://dx.doi.org/10.2139/ssrn.2030303

Contact Information

Aziz Z. Huq (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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