Quirin to Hamdan: Creating a Hybrid Paradigm for the Detention of Terrorists

Abstract

This article develops what I call the "hybrid paradigm," which establishes the legal regime for the trials of those detained post-9/11. Incorporating elements of the American criminal law and procedure paradigm and drawing on the Israeli two-tiered system for the trying of terrorists, this article offers concrete recommendations post-Hamdan.

In response to the Supreme Court decision, Hamdan v Rumsfeld, 126 S.Ct. 2749 (2006), I have developed a model that enables the trying of terrorists while meeting judicial scrutiny by drawing on certain elements of the criminal law process. Furthermore, the article addresses the limits of the applicability of the criminal law process, particularly with respect to the right of detainees to confront their accusers. Detainee trials are largely based on intelligence sources whose identity cannot be disclosed. The lack of disclosure prevents full implementation of the 6th Amendment confrontation clause. My model balances the defendant's basic rights with equally legitimate national security considerations.

Keywords: criminal law, international law, POW, hybrid paradigm, criminal procedure, rights and status of post-9/11 detainees, Miranda, right to confront witnesses, full and fair trial, prisoner of war, detainee, enemy combatant, Quirin, Hamdan, 6th amendment, Confrontation clause, Israel, Guantanamo Bay

JEL Classification: K14, K33, K42, K49