Substitute Justice? Challenges to American Counter-Terrorism Activities in Non-American Courts
68 Pages Posted: 4 Nov 2012 Last revised: 12 Jul 2013
Date Written: November 3, 2012
This paper examines how American courts have in their decisions denying remedies to those adversely created by American counter-terrorism have created a demand for substitute justice in which those adversely affected by such activities seek remedies in the courts of other democracies. The first part examines those conditions of American exceptionalism and extra-legalism that have created the demand for substitute justice including broad state secrets and the refusal to provide damages for detention at Guantanamo or habeas corpus with respect to detention at Bagram. The second part examines substitute justice litigation in Australia involving Guantanamo detainees David Hicks and Mamdouh Habib and the third part examines substitute justice litigation in Canada involving Maher Arar, Omar Khadr and Abdullah Khadr. The fourth part examines substitute justice litigation in Britain involving a range of Guantanamo detainees including Abbassi and Binyam Mohamed. It also examines the grant of habeas corpus that failed to produce Bagram detainee Yunus Rahmatullah to the British courts as well as pending legislation designed to curb such litigation and prevent the disclosure of secrets involving misconduct by third parties, most notably American agencies. The last part assesses substitute justice litigation concluding that while it often fails to produce effective and immediate remedies for the litigants, it has provided some indirect review and criticism of American counter-terrorism activities.
Keywords: Guantanamo, Bagram, litigation remedies
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