Beyond the Court of Public Opinion: Military Commissions and the Reputational Pull of Compliance Theory

Abstract

The decision to prosecute the suspected co-conspirators of the 9/11 terrorist attacks in either federal court or by military tribunal has reached a critical juncture. Central to this debate is whether the military commissions are consistent with domestic and international standards of justice. Utilizing the analytical framework of compliance theory, this article discusses the U.S. reputation for compliance in the context of the revised military commissions.

A decidedly negative reputation of the military commissions contributed to policies to amend the tribunal process, culminating in the Military Commissions Act of 2009. This supports empirical findings that States are pulled toward compliance with legal norms in part out of concern for reputation among transnational actors, such as governments, multi-national institutions, non-governmental organizations, and legal commentators. This article argues for policy-makers to engage in the interpretive, discursive process of normative compliance theory when formalizing national security strategy. Applying this process will minimize the need to engage in post hoc reputation shaping and, more importantly, will facilitate internalization of applicable legal norms in counter-terrorism policy.

Keywords: compliance theory, military commission, national security, international law, Guantanamo