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From the EditorH E I G H T E N E D I N S E C U R I T YWe are told repeatedly these days that the war on terror is upon us, making “our greatest responsi-bility…the active defense of the American people.” The words are those of President George Bushin his 2004 State of the Union Address. The new era, the one for which defense is paramount, isan age of increased fear and increased instability, one which has made shaky the very groundbeneath our feet. The question is, then, what are the demands of this new era, both for the govern-ment and for the private sector?

Changes in policy have abounded since September 11 as public servants, lawmakers, and policyexperts have raced to exert some control, some protection and some defense against terrorists athome and abroad. The passage of the Patriot Act, the creation of the Department of HomelandSecurity, the revision of INS regulations, and a host of private and public security measures are themost concrete instances of the attempts in the U.S. to quickly reorganize in order to most effec-tively conduct the war on terror. Police departments have reoriented their activities, often withoutthe benefit of time for thinking through the long term ramifications of such policy changes.International institutions have developed new means of identifying threats and sharing informa-tion. And the courts, lawyers and judges have attempted to make policy by addressing the fragilebalance between national security and the full panoply of constitutional issues.

Issues Number Two and Three of The NYU Review of Law and Security explore some of themore visible domestic measures and strategies that have been undertaken in the name of protectingthe American people. These issues of The Review attempt to explore the patterns and precedentsthat the new policies have engendered, both intentionally and inadvertently. Many questionsemerge as one looks to understand the legal innovations of the Bush Administration. Citizens,experts, law enforcement officials and others must consider anew whether or not the new policiesand procedures have spawned adequate mechanisms for accountability. They must also judge theimportance of safeguarding America’s international reputation, as well as the preference where itexists for secrecy as opposed to transparency in affairs of state when public protection is a stake.Nor can Americans avoid contemplating the way in which counterterrorist strategies may affectother areas of law enforcement.

One interpretive principle with which to consider these questions is whether or not Americansecurity is being conducted in the context of Crime or of War. Issue Number Two, “Crime VersusWar: Guantánamo” focuses on the Camp Delta maximum security facility at Guantánamo Bay as away of navigating the waters between the customs and regulatory mechanisms of criminal law andthose pertaining to law. When do authorities invoke the models of war? When do they consider actsof terror to be crimes? How will lower court decisions and law enforcement policies be affected by thedecisions of the Supreme Court in the matter of Guantánamo? How does the rest of the world con-ceptualize our efforts to decide the issues involved in the Guantánamo cases? To address these ques-tions, we have assembled a wide group of experts, including Ruth Wedgwood, George Fletcher,Stephen Holmes, David Golove, Keith Weston and others, experts who have endeavored to step a bitoutside of today’s tensions and ask, what is happening to our society and how do the lessons of ourprofessions counsel us to go forward? In these pages they look at issues such as accountability, sover-eignty, reciprocity, international affairs, and secrecy. Together, their thoughts provide sober yet inspiringavenues for approaching our world in the Age of Terror.

- K A R E N J . G R E E N B E R G

Table ofContents F R O M T H E E D I TO RHeightened Insecurity

F E AT U R E A R T I C L ETerrorism and Accountability:Why Checks and Balances ApplyEven in “The War on Terrorism”by David Golove and Stephen Holmes

P R O C E E D I N G SOpen Forum on the GuantánamoSupreme Court Case, featuringRachel Barkow, Norman Dorsen,George Fletcher, David Golove,and Ruth Wedgwood

I N T E R V I E W with CommanderGeoffrey Miller at the GuantánamoJoint Task Force Base by Emma Reverter

P R O F I L E SLawyers Involved in the Military Tribunals

T H E AT E R R E V I E WLeo Strauss Onstage: Embedded,A Play Written and Directed by Tim Robbins reviewed by Karen J. Greenberg and Stephen Holmes

T H E V I E W F R O M A B R O A DFrom Carlos the Jackal to Osama bin Laden by Keith Weston

Adjudicating Counterterrorism:The Israeli Model by Yigal Mersel

E V E N T SWinter Events for the Center on Law and Security

S T U D E N T S at the Center on Law and Security

I N T H I S I S S U E :C R I M E V E R S U S W A R :

G U A N T Á N A M O T H E N YU R E V I E W O F

LAW AND SECURITYA P U B L I C A T I O N O F T H E C E N T E R O N L A W A N D S E C U R I T Y A T N Y U S C H O O L O F L A W

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Executive power, by its very nature, seeks toundercut constitutional rules that make itaccountable to other branches of government.This is a universal tendency, not unique to theBush administration. It derives from the execu-tive’s conviction that it can solve importantproblems most effectively when unconstrainedby meddling courts and many- headed debatingsocieties such as Congress. The executivebelieves in itself, quite sincerely, and sees noreason why it should be second-guessed byjudges and legislators whose familiarity with theissues at hand is amateurish at best. Still, by anystandard, the current administration representsan extreme version of this common conceit.

Even before September 11, the adminis-tration’s fondness for executive-branch unilat-eralism was visible in its claims of executiveprivilege and its devotion to secrecy. But its

aversion to legislative and judicial (not to men-tion public) oversight has markedly increasedsince September 11. Examples are legion. Byartfully “embedding” reporters inside Americanmilitary units, the Pentagon’s truth machinespoon-fed the public a picture of the Iraq warunfailingly flattering to the administration. TheWhite House has also been relentless in grant-ing access to friendly reporters while denying it to critics. Nor has it been above employingMcCarthyite tactics, impugning the loyalty and patriotism of critics, implying that routinequestions about administration competenceand foresight amounted to disrespect for theSeptember 11 victims or betrayal of soldiers inthe field. Its rough treatment of whistle-blow-ers such as Ambassador Wilson, apparentlydesigned to discourage “turncoats,” falls intothe same category.

The novel doctrine of preemptive self-defense is also designed to make oversightextremely difficult. It empowers the executivebranch to make life-and-death decisions onthe basis of secret information from dubioussources that the other branches cannot possi-bly verify or double-check. The administra-tion’s refusal to countenance any significantrole for allies and the United Nations in mak-ing decisions about U.S. actions is perfectlyconsistent, therefore, with its stonewalling ofthe legislative and judicial branches domesti-cally. Serious involvement of actors outside theU.S. executive branch is undesirable not onlybecause it would limit administration flexi-bility but also because it would require theadministration to provide persuasive justifica-tions for its actions.

Unchecked and unbalanced executiveauthority is especially prominent in the war onterrorism. It is sometimes difficult to identifythe guiding principles behind administrationcounterterrorism policy. No one can be surewhat principles are being used to set prioritiesfor the strategic allocation of scarce resources.But we can easily discern a political impulsebehind the Patriot Act, the mass detentions of

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A prisoner being escorted by military personnel. In November, the Supreme Court agreed to hear a case filed on behalf of Kuwaiti and British prisoners held at Guantánamo,challenging the Bush Administration’s ability to hold them without due process. Photo: GlobalSecurity.org

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Terrorism and Accountability: Why Checks and Balances ApplyEven in “The War on Terrorism”B Y D A V I D G O L O V E A N D S T E P H E N H O L M E S

immigrants in the immediate aftermath ofSeptember 11, the extra-legal treatment ofdetainees in Guantánamo Bay, and the militarydetention of U.S. citizens within the UnitedStates. Behind all these policies, once again,is the executive branch’s compulsive desire toavoid oversight by, or accountability to, anybody outside the executive branch.

In the war on terrorism, the administra-tion has sought to justify this bold arrogationof authority by invoking what might be calledthe war model of presidential powers. TheUnited States is “at war,” and wartime presi-dents deserve extensive deference from theother branches of government, for neither leg-islators nor judges are in a position to micro-manage the U.S. response to swiftly evolvingnational-security threats. To understand theadministration’s efforts to enfeeble the consti-tutional system of checks and balances, weneed to examine the way it uses (or misuses)the war model or, more accurately, the under-lying distinction between crime and war.

International terrorism is obviously nei-ther war nor crime in the traditional sensesof those terms. It is rather some combinationof both, or perhaps an altogether new phe-nomenon. The Bush administration has nev-ertheless insisted that it is engaged in “war”tout court – hence the phrase “war on terror-ism.” It embraces the war paradigm becauseit frees the executive from the ordinary checksand balances that constrain its conduct inpeacetime. To be sure, administration defend-ers argue that a paradigm shift, far frombeing chosen, was compelled by September11. Criminal procedure places restraints onexecutive power that, although acceptable in ordinary circumstances, become suicidal in the face of a terrorist conspiracy, say, tosmuggle a nuclear suitcase into an Americancity. It may have been impeccable legally,but the trial of the perpetrators of the 1993attack on the World Trade Center obviouslyhad no deterrent effect. The administrationargues, therefore, that in undertaking a majorinitiative in counterterrorism, it had to shedthe crime-fighter’s concern with punishingindividual violators of law and embrace thewar-fighter’s logic of destroying the swornenemy by any means at our disposal. Nor,in the administration’s view, is it possible towait for Congress to deliberate and hammerout a consensus on what measures are justi-fied by the new threats. Congress has neither

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EVEN BEFORE SEPTEMBER 11, THE ADMINISTRATION’S FOND-

NESS FOR EXECUTIVE-BRANCH UNILATERALISM WAS VISIBLE IN

ITS CLAIMS OF EXECUTIVE PRIVILEGE AND ITS DEVOTION TO

SECRECY. BUT ITS AVERSION TO LEGISLATIVE AND JUDICIAL (NOT

TO MENTION PUBLIC) OVERSIGHT HAS MARKEDLY INCREASED

SINCE SEPTEMBER 11.

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”P O S S E C O M I T A T U S A C T

L A W O F J U N E 18 , 18 7 8 , C H . 2 6 3 § 15 ,

2 0 S T A T . 15 2 ( A R M Y A P P R O P R I A T I O N S )

A posse comitatus is a group of citizens called together to assist with law

enforcement. The Posse Comitatus Act was originally passed as a rider to a June

18, 1878 Army appropriations bill. It states that “it shall not be lawful to employ

any part of the Army of the United States, as a posse comitatus, or otherwise, for

the purpose of executing the laws, except in such cases and under such circum-

stances as such employment of said force may be expressly authorized by the

Constitution or by act of Congress.” After the Civil War, federal troops were sta-

tioned at voting booths to ensure universal suffrage and to prevent Confederate

officers from voting. They also performed civilian law enforcement duties when

such services were unavailable in the Western frontier of the U.S. The end of

Southern reconstruction and abuse by the military of their police powers in the

West led to the Posse Comitatus Act. The Act has been suspended by Congress

several times. In 1919, federal troops were used to suppress riots in Chicago.

President Truman used Posse Comitatus to temporarily nationalize the railroads,

placing them under the Army Corps of Engineers, in order to suppress a railroad

workers’ strike. The Posse Comitatus Act survived the reorganization of the War

Department into the Department of Defense under the 1947 National Security

Act. Originally located in Title 10 of the U.S. Code (Armed Forces), Congress

amended the Act in 1956 to include the Air Force. Congress also created numer-

ous exceptions to the Act, including those for training local law enforcement and

for emergencies involving weapons of mass destruction.

definition

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the resources, the expertise, nor the institutionalcapacity necessary to reach the right results in a timely fashion. Decisive executive action isnecessary to uphold the national interest.

Emergencies unquestionably require theexecutive to act with intensified secrecy anddispatch. In the heat of battle, for similar rea-sons, military commanders cannot be exces-sively concerned with due process. Theyroutinely unleash lethal force on the basis ofhearsay testimony and circumstantial evidence.They do not always have the luxury of double-checking reports about the intentions of anapproaching armed formation. The war para-digm and the crime paradigm, in other words,dictate different attitudes toward false posi-tives and false negatives. The presumption ofinnocence suggests that crime fighters, in aconstitutional system, must make every effortto avoid punishing the innocent. Such liberalscruples obviously have less force in the heatof battle. Military commanders know that thefailure to identify hostile parties in a timelyfashion can be fatal. The fog of war makes it impractical to require soldiers to establishindividualized guilt beyond a reasonable doubt. Killing suspects is accepted on a foreignbattlefield, even though it provokes outragewhen it happens on the streets of Americancities. Similarly, crime fighters are not ordi-

narily allowed to mistreat or kill innocentbystanders, while soldiers are given muchgreater leeway in this regard. For instance,dropping bombs on “military targets” may bejustifiable even though there will be consid-erable loss of life to innocent bystanders. Afortiori, this implies that mistakenly detain-ing innocent persons may be acceptable collateral damage if it enables the executivemore effectively to avoid (potentially cata-strophic) false negatives.

This brief overview of the crime/war distinction makes it obvious why the adminis-tration, in search of maximum flexibility,wants to classify counterterrorism as warfighting rather than crime fighting. The

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executive branch has much greater freedom of action when fighting enemies than whenpursuing and punishing criminals.

That it also deserves greater freedom ofaction seems indisputable. But how muchimmunity to oversight can it be safely granted?The terrorist threat may require some rollbackof ordinary due-process restraints. But does itrequire the administration to curtail the execu-tive’s accountability to the legislative and judi-cial branches of government to this degree?

Consider a few examples of the ways inwhich the administration has sought to limit its accountability to the other branches. ThePatriot Act, which the administration has sostrongly advocated, significantly loosensrestrictions on domestic surveillance in a widevariety of respects, particularly by weakeningthe role of independent judicial officers inoverseeing executive discretion. This lifting of restraints allows the executive to widen itsinvestigative net notwithstanding potentiallyharmful effects on those who are in realityuninvolved. The public and the press havebeen excluded from immigration hearings following the administration’s September 11immigration sweeps, even though secrecyundermines the public’s ability to hold theexecutive accountable or even to know whatthe executive is doing. And, perhaps mostdramatically, U.S. citizens are being detainedfor extended periods of time – indeed, indefi-nitely – and held incommunicado solely onmilitary authority. The executive claims thatthe courts simply have no oversight role (oronly the most minimal role) over its conductin relation to “enemy combatants” (meaningthose it has unilaterally deemed to be such,even in the absence of any statute defining the term). Indeed, contrary to the underlyingphilosophy of the Posse Comitatus Act (seesidebar, page 3), the executive has claimed

web sitesW E B S I T E S O F I N T E R E S T O N G U A N T Á N A M O

www.guantanamo.com/WorldNews Network’s digest of information on Guantánamo Base, includingup-to-date news on court cases, prisoners and world reaction to events andcircumstances at the base.

www.guardian.co.uk/guantanamoInformation on the legal cases involving British prisoners at Guantánamo.

www.globalsecurity.org/military/facility/guantanamo-bay.htm Images, satellite photos and general factual information on Guantánamo Bay.

web.amnesty.org/pages/guantanamobay-index-engWebsite of Amnesty International, including information and analysis on humanrights violations at Guantánamo.

www.nsgtmo.navy.mil/ Official U.S. Government website for families residing at Guantánamo.

WHEN IT SUITS THE ADMINISTRATION’S POLICY NEEDS, ENEMY

COMBATANTS CAN BE TREATED AS COMMON CRIMINALS AND

SUBJECTED TO TRIAL AND PUNISHMENT FOR ACTS THAT WOULD

TRIGGER NO PUNISHMENT IF COMMITTED BY LEGITIMATE SOLDIERS

BUT FOR WHICH NO IMMUNITY ATTACHES IF THE PERPETRATORS

ARE NON-SOLDIERS.

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that the military may detain U.S. citizens inthis manner, even when they are “captured” onU.S. soil, arguing that U.S. territory is a zoneof war in the global war on terrorism. Finally,the administration is holding large numbersof prisoners in the war on terrorism in Guan-tánamo Bay, again incommunicado and for an indefinite duration, and it claims that thedetainees have no right to seek relief in theU.S. courts and, indeed, no right to any mech-anism to ensure either that their treatment islawful or that their detention was initially orcontinues to be warranted. Such measures arejustified by the suggestion that, in an emer-gency (which may last decades), false nega-tives are infinitely more dangerous than falsepositives. Given the terrorist threat, the ad-ministration implicitly argues, the downsideof punishing the innocent is much less acutethan the terrible consequences of failing toincapacitate the fanatical conspirators. If weend up wrongly incarcerating 100 innocentpeople in order to get one potential bioterror-ist off the streets, so be it. Those who defendthis anti-legalistic approach urge us to relaxabout the three youths recently released fromGuantánamo after a year and a half in deten-tion and about the many others who havenow been set free and who had no apparentconnection to terrorism or Al Qaeda. Theadvantage to us, the administration implicitlyargues, is well worth the price paid by thosewho have no political voice inside our demo-cratic system.

At the same time, the administration hasrefused to follow even the war paradigmwhen it imposes mechanisms of accountabil-ity that might prove inconvenient or embar-rassing. The Guantánamo detainees are not,according to the administration, POWs andare not, as a consequence, being deprived oflegal protections under the war paradigm as it is usually understood. Indeed, we shouldnot understand Guantánamo as the straight-forward result of the administration’s attemptto locate counterterrorism within the warparadigm rather than the crime paradigm.What Guantánamo represents, instead, is theadministration’s opportunism; that is, its art-ful shifting back and forth between the twoparadigms whenever expedient. Its “paradigmshopping” seems unprincipled, it should besaid, driven by the administration’s one con-sistent aim, namely its desire to limit account-ability and oversight.

It would be a mistake to think that themodern war paradigm is entirely unconcernedabout accountability. It too has mechanisms of accountability, albeit more limited thanthose associated with the crime paradigm.Principally, these are found in internationallaw, whether it be international humanitarianlaw and the Geneva Conventions or the inter-national law of human rights, as well as in theinstitutional mechanisms that those bodies oflaw have created or require states to create toensure their enforcement. (For example, Article5 of the Third Geneva Convention requires thedetaining power to afford detainees access tomilitary tribunals that can adjudicate, on theirstatus on an individualized basis). To avoideven these forms of accountability, the admin-istration claims that terrorists are not legiti-mate soldiers; hence, they are not entitled tothe protections international humanitarian lawaccords to POWs. As a result, when it suits theadministration’s policy needs, they can be treat-

ed as common criminals and subjected to trialand punishment for acts that would trigger nopunishment if committed by legitimate soldiersbut for which no immunity attaches if the per-petrators are non-soldiers. This is not to sug-gest that the administration has shifted backfully to the crime paradigm. Rather, it arguesthat the crime paradigm must be modified bythe war context. As a result, these enemy com-batants, while not deserving POW status, canbe subjected to harsh conditions of confine-ment and can be tried by special military com-missions that do not afford the accused theordinary rights of criminal defendants.

Furthermore, the administration stillretains the option of abandoning the crimeparadigm and having recourse solely to thewar paradigm. If it ultimately prefers toavoid the accountability that inheres in anindividualized adjudication, albeit one con-ducted as a purely military proceeding, it cansimply continue to hold the detainees indefi-nitely without trial of any kind. Moreover, itclaims not only that international humani-tarian law does not apply or afford substan-tial protections to the detainees, but also thathuman rights law is inapplicable as well, onthe ground that detainees in Guantánamoare not being held in territory over which the U.S. is sovereign, which, according to the administration, is a requirement for theapplication of human rights law.

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Soldiers at Guantánamo Bay provide perimeter security for the naval station where hundreds of terrorism suspectsare held. Photo by Chief Petty Officer John F. Williams, U.S. Navy. (Released)

© cnn.com

be avoided, it is crucial to bear in mind thebenefits that accountability promotes.

First and foremost is intelligent decisionmaking and midstream readjustments to poli-cies that prove ineffective or self-defeating.Unless forced to articulate public justificationsthat can be tested and evaluated by independentactors, executive branch officials tend to operatein a vacuum, without reality checks. They runthe risk of being autistic. Some sort of discon-nect from reality would hardly be surprising,especially in a highly partisan administrationwhere like-minded sectarians reinforce eachother’s preconceived notions and a bunker men-tality filters out doubts and contrary voices. Byevading ordinary mechanisms of accountabilityand oversight, the administration may think itis gaining flexibility to deal with daunting prob-lems. But it also risks overlooking crucial factsand making judgments influenced by cognitivebiases and perhaps hidden agendas. The point

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Taken together, these various claimsresult in a remarkable legal situation, uniquein a society dedicated to the rule of law:Detainees held in Guantánamo have beenplaced in a virtually law-free zone. Domesticlaw including the U.S. Constitution does not apply and, in any case, cannot be enforcedby courts, and international law does notapply, because in the administration’s view it is either inapplicable altogether or onlyweakly applicable and almost entirely per-missive; to the extent it may apply, it toocannot be enforced by courts for jurisdictional or other reasons, and compliance is thus leftentirely to executive discretion. In otherwords, the executive may simply do whateverit likes, subject to the checks and balances of no other actor, domestic or international.Moreover, if this is true of Guantánamo, soclosely assimilated to U.S. territory and atleast under the scrutiny of the U.S. and worldpress, it is emphatically so of the sometimesundisclosed off-shore locations where otherprisoners in the war on terrorism are beingheld and interrogated.

Still, it is fair to ask, what is so importantabout accountability? And, more importantly,why is the Bush administration not right inarguing that the kinds of mechanisms ofaccountability associated with normal timesmust yield in times of emergency or war? Nodoubt there is considerable force to the argu-ment that emergency situations require adjust-ments to the normal operation of the checksand balances system. This is particularly thecase with regard to battlefield decisions andin contexts where threats to national securityleave no time for critical reflection by multipleinstitutional actors. But once we move outsideof these core areas, where urgent action cannot

is that accountability mechanisms are designednot to block the executive from achievingimportant policy goals supported by the public,but rather to enhance the effectiveness of exec-utive decision-making by forcing executive offi-cials to offer public justifications for their policychoices and thereby compelling them to actwith more consistency and on the basis of pub-licly acceptable reasons. Requiring the executiveto submit to congressional or even bureaucraticoversight of its fact-finding procedures and pol-icy judgments and decisions, and to defend itsactions before neutral judicial officers, are thebest mechanisms we have for ensuring thatexecutive policy does not veer off on ill-consid-ered tangents, imperiling the very nationalinterests that it claims to be advancing. As anobvious example, consider the intelligence fail-ures in connection with Iraq. Left to its owndevices, the executive will inevitably commitserious blunders, sometimes with consequencesprofoundly deleterious to the national interest.

Second, democratic electoral processessystematically produce incentives for publicofficials to act contrary to the public interest,and accountability mechanisms are essentialprecisely to ameliorate this dysfunctional sideeffect of democratic institutions. Most impor-tant, incumbents have powerful personal andpartisan interests for hiding past mistakes, andexecutive secrecy provides perhaps the singlemost effective means for accomplishing justthis purpose. For example, it is fair to ask whythe administration opted for a highly visiblebut seemingly brutal policy towards the Guan-tánamo detainees, notwithstanding the stronginternational criticism that its actions pre-dictably aroused and the large number of false

F R O M T H E M I D D L E E A S T

“In its ‘war on terror’, the Bush administration has effectively excluded the leg-

islative and judicial branches of the government by exacting consent from the

former for broad presidential powers and blocking intervention from the latter

on national security and jurisdiction issues.”

- Ramsey Al-Rikaby in the Al-Ahram Weekly Online: 20-26 November 2003 (Issue No. 665) http://weekly.ahram.org.eg/2003/665/in2.htm

news digest

REQUIRING THE EXECUTIVE TO SUBMIT TO CONGRESSIONAL

OR EVEN BUREAUCRATIC OVERSIGHT OF ITS FACT-FINDING

PROCEDURES AND POLICY JUDGMENTS AND DECISIONS, AND

TO DEFEND ITS ACTIONS BEFORE NEUTRAL JUDICIAL OFFICERS,

ARE THE BEST MECHANISMS WE HAVE FOR ENSURING THAT

EXECUTIVE POLICY DOES NOT VEER OFF ON ILL-CONSIDERED

TANGENTS, IMPERILING THE VERY NATIONAL INTERESTS THAT

IT CLAIMS TO BE ADVANCING.

“

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positives that its policy of refusing individual-ized determinations may possibly have created.Was it because denial of any independentscrutiny was necessary in order to combat AlQaeda, or was it because creating the appear-ance of bold action in the war on terrorism waspolitically important to assuage public concernsafter the failure to capture Osama bin Ladenin the battle of Tora Bora? The latter is notnecessarily the better explanation, but its nearplausibility is a serious problem. Unaccountableexecutive action naturally engenders politicallycorrosive speculations. This is another reasonto resist the administration’s exaggeratedrequests for “flexibility,” that is, for freedomfrom accountability.

Third, accountability is necessary to ensurenot only that decisions are prudent and moti-vated by the public good, but that they actuallyconform to the structure of widely held publicvalues that underlie our institutions. Executiveofficials have powerful incentives to achievepolitically eye-catching results and to disregardother competing values if they pose any poten-tial obstacle in the executive’s path. HoldingAfghani and Arab youths incommunicadounder harsh conditions for extended periods of

time away from their families, for example, maynot even register as a cost worth considering toexecutive officials intent on displaying theirprowess in the war on terrorism. And it willlikely remain under the radar screen given exec-utive secrecy. The same is true of the extralegaltransfer (“rendition”) of non-U.S. nationals,loosely suspected of terrorist ties, to countrieslike Syria where it is known in advance that theywill be tortured. But these practices may do seri-ous long term damage to the public politicalculture as well as sullying the wider reputationof the nation in the international community.

Moreover, the claim that the suppressionof international terrorism is “war” and thus justifies the wholesale adoption of the warmodel of presidential powers is seriously mis-guided. International terrorism is neither warnor crime. Although it shares some featureswith both, it can be reduced to neither. Whatwe need to do, therefore, is to come up with anew model that applies specifically to interna-tional terrorism as we now face it. Such amodel would necessarily include mechanismsfor holding the executive branch to account.Importing doctrines developed in the different

contexts of crime and war without criticalexamination is a recipe for opportunistic para-digm shopping and unhealthy avoidance ofoversight. The U.S. Constitution, among otherthings, is a mechanism for helping fallibleofficials, in a timely fashion, correct the mis-takes they inevitably make in the course ofmanaging public affairs. The terrorist threat,presumably, has not made the executive branchinfallible. Hence, the administration’s efforts to weaken the system of checks and balancescannot possibly serve the national interest inthe long run.

THE ADMINISTRATION’S WAR PARADIGM ALSO HAS POTENTIALLY

GRAVE IMPLICATIONS FOR TRADITIONAL UNDERSTANDINGS OF THE

NATURE OF LIMITED GOVERNMENT. IF COUNTERTERRORISM IS

WAR, AND THE WAR IS GLOBAL, THEN U.S. TERRITORY IS PART OF

THE WAR ZONE, AND THE WAR POWERS APPLY IN FULL AT HOME

AS WELL AS ABROAD.

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Two additional points can be made by wayof conclusion. First, the criminal trial developedhistorically as a means of cauterizing the spiralof violence that blood feuds routinely create. Byforcing an individualization of guilt, the veryidea of crime discourages the taking of reprisalson a collective basis. The war model has precise-ly the opposite effect. It encourages us to thinkthat we are at war with a hostile collectivity. Theidea of collective guilt leads easily to the idea ofguilt by association as well as to the possibilityof collective punishment. It may not be far-fetched to suggest that the American public hasacquiesced in the legally questionable situationin Guantánamo because it has implicitly accept-ed the idea of collective guilt. Nor is it far-fetched to think that the administration’s refusalto commit to individualized determinations ofguilt is exacerbating the rage felt against theUnited States, as a collectivity, in many parts ofthe world. This is an extremely dangerous pathto pursue. Only the individualization of guilt,implying judicial oversight of executive action,can protect us from the unforeseeable conse-quences of a clash of civilizations.

The administration’s war paradigm also haspotentially grave implications for traditionalunderstandings of the nature of limited govern-ment. If counterterrorism is war, and the war isglobal, then U.S. territory is part of the warzone, and the war powers apply in full at homeas well as abroad. This is precisely the dangerthat Justice Jackson warned about in his famousopinion in the Steel Seizure case. The reconcilia-tion of the war powers and domestic liberaldemocracy has historically depended on theexistence of a firewall between the president’swar powers and continental U.S. territory. Bush’sactions threaten to breach this firewall in anunprecedented way and raise worries aboutwhat, if anything, will take its place.

Guantanamo Bay, also called “Gitmo,” is the navy’s oldest base outside of the U.S. Photo: GlobalSecurity.org.

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G U A N T Á N A M O D E T E N T I O N S : W H A T D O T H E Y M E A N ? —A V A R I E T Y O F O P I N I O N SThere are about 640 detainees from 38 coun-tries remaining in Guantánamo, at least 160of them from Saudi Arabia. Among the othernationalities are Yemenis (85), Pakistanis (82),Afghans (80), Jordanians (30), and Egyptians(30). Their names have not been released bythe U.S. Government but a handful of nameshave been leaked through other sources. Inthe past few months, 87 have been let go. Thisspring, the Supreme Court will hear the casesof some of the detainees from Kuwait, Britain,and Australia.

On February 4, The Center on Law andSecurity hosted an Open Forum on Guan-tánamo Bay. The moderator was NormanDorsen, Stokes Professor of Law at NYUSchool of Law, counselor of New YorkUniversity, and former president of the ACLU.The participants were: Rachel Barkow, AssistantProfessor, NYU School of Law; GeorgeFletcher, Cardozo Professor of Jurisprudence,Columbia University School of Law; DavidGolove, Professor, NYU School of Law; andRuth Wedgwood, Edward B. Burling Professorof International Law and Diplomacy, professorat SAIS at Johns Hopkins, and former adviserto the Pentagon on implementing rules for warcrimes trials in the military commissions.

At this event, Professor Norman Dorsensummed up the matter before the Court. “TheUnited States Supreme Court will hear habeascorpus petitions (see sidebar on Al Odah v.Bush, page 10 and Gherebi v. Bush, page 9)from prisoners captured in Afghanistan andturned over to the United States by friendlycountries. The interned men wish to be able toshow that they are being held unlawfully. Themain question facing the Court is whether ornot the U.S. has sovereignty over GuantánamoBay. Behind the question of jurisdiction lies aseries of other questions, some legal, somepolitical, and some a mixture of the two. Forexample, does U.S. domestic law permit theholding of these people in prison in thesecircumstances, whether or not the GenevaConvention (see sidebar, page 13)—a treaty

Open Forum on Guantánamo

J O H N S O N V . E I S E N T R A G E R , 3 3 9 U . S . 7 6 3 ( 19 5 0 )

In 1945, after Germany’s unconditional surrender, 21 German nationals were

arrested by U.S. forces in China. After hostilities ceased, they were tried in

China by a U.S. military tribunal for violations of the laws of war, including con-

tinuing intelligence activities for Japanese forces after Germany’s surrender.

After conviction, the prisoners were sent to Germany to serve their sentences.

They petitioned for a hearing in the D.C. District Court. The petition was

denied on the basis that the court lacked jurisdiction over the prisoners. The

Court of Appeals reversed the decision, saying that in cases where a person’s

constitutional right to liberty is deprived by the United States, jurisdiction is a

necessary part of the United States’ judicial power.

The Supreme Court overturned the decision, holding the Federal Courts did

not have jurisdiction over foreign enemy aliens whose crimes had not been com-

mitted in and who were not held in the territorial jurisdiction of the United

States. While the Court recognized that many constitutional liberties had been

extended to resident aliens in the U.S., it stated “in extending constitutional pro-

tections beyond the citizenry, the Court has been at pains to point out that it

was the alien’s presence within its territorial jurisdiction that gave the Judiciary

power to act.” The Court also distinguished war time from times of peace, and

held that even resident alien rights may be subject to limitations of their

Constitutional rights under the Alien Enemy Act. The Court was hesitant to

extend rights to foreign enemy aliens that were denied to resident aliens. In

addition, the Court stated such a requirement would grant foreign enemy aliens

a right not given to our own soldiers. The 5th Amendment does not apply to U.S.

soldiers, which exempts Army, Navy, and militia members from its protections.

The Fifth Amendment exempts land and naval forces as well as members of the militia who are in service duringtimes of war or public danger. (Photo from: www.nsgtmo.navy.mil/jtfgtmo/)

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signed by the U.S.—does so? Should the trialstake place before military commissions and notcivilian or ordinary military courts? Is the U.S.in a war in a constitutional sense? And finally,what is the relevance of a constitutional casewhich the Supreme Court will soon hear onthe legality of holding U.S. citizens in solitaryconfinement without access to a lawyer andwithout a trial on the grounds that they areenemy combatants?”

Dorsen then went on to consider theeffects that opinions from abroad will haveon the cases.

“As some of you may know, when Brown v.Board of Education — the great desegregationcase — was argued in the Supreme Court, theU.S. government brief on the side of the peti-tioners against segregation had a section saying,‘We’re engaged in a world-wide struggle.’ Whatthey meant, of course, was the Cold War. Thiswas 1954, right at the heart of it. ‘And what wedo to our racial minorities is going to have animpact on the way the rest of the world thinksabout us.’ There are those who think that theargument was persuasive with some membersof the Court. They didn’t want to do anythingthat would put down African Americans at atime when we were struggling to get our ownauthority established in Africa, Asia, and otherplaces. Related to this, in the Guantánamo case,several members of the British parliamentwrote an amicus brief objecting to the confine-ment of U.K. nationals.

“Should the Supreme Court be swayed bythese arguments? Should what other countriesthink of us be a consideration of substantialimportance to the Court? Or is there a matter

of principle that the Court should stand nomatter what people think in other countries (in the U.K. or anywhere else)?”

The first person to consider some of thequestions posed by Professor Dorsen wasProfessor George Fletcher, who highlightedthe importance of considering enemy combat-ants with a due regard for their potential dan-ger, as well as the importance of using militarycourts to try enemy combatants. These werehis remarks:

“What precisely is the issue at stake inthe Guantánamo case? The issue is whether ornot it is possible for the executive acting alonewithout judicial supervision to make a determi-nation that someone should be subject to con-finement and detention under the auspices ofthe United States military. Should there be anyjudicial supervision over this executive decision?

“The answer is that there is no SupremeCourt precedent for an exclusively executivedetermination that people are subject to con-

finement without a hearing, without counsel,and without supervision.

“Much is made of the case of Johnson vs.Eisentrager (1950) (see sidebar, page 8). InEisentrager the question was whether or notGermans who were confined in Germany on the basis of crimes allegedly committed in China during World War II could bring awrit of habeas corpus to the Supreme Court.The Supreme Court decided no, the courtswere barred to ‘enemy aliens.’ German nationalswere enemy aliens at the time they committedthe alleged offenses in China.

“Eisentrager was tried by a military com-mission, so there was some form of process.Six of the alleged were acquitted; it was anhonorable and honest process in which therewere factual determinations made by some-thing that is not exactly an Article Three Court(see sidebar, page 15) but that at least hassome resemblance to a judicial proceeding.In the Guantánamo case we have nothing

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In Gherebi, the 9th Circuit considered the application of Eisentrager to the

current detainees in Guantánamo Bay. Gherebi was a detainee in Guantánamo

seeking a writ of habeas corpus to appeal before a U.S. District Court (The

Central District of California). The question before the court was whether

Guantánamo Bay Naval Base was within the “territorial jurisdiction” of the

United States.

The government argued that Eisentrager’s requirement that a person be

within the “territorial jurisdiction” of the United States meant that the United

States must have sovereignty over the place in question. Gherebi argued that

the nature of the United States’ near absolute control of Guantánamo was suf-

ficient. The 9th Circuit ruled for Gherebi.

The court held that the Supreme Court had not needed to make a distinc-

tion between sovereignty and territorial jurisdiction, as it was not an issue in

the case. Citing dictionary definitions of territorial jurisdiction as meaning the

“power to proscribe, prescribe, adjudicate, and enforce the law ,” the court

found that the U.S. had territorial jurisdiction over Guantánamo. The United

States had continually operated as if it was in complete control of Guantánamo

for over 100 years, including exclusive jurisdiction over criminal matters com-

mitted on the base.

After finding that these issues were sufficient to decide the issue of

habeas corpus, the court went on to examine whether the U.S. had “sover-

eignty” over Guantánamo Bay, and found that for the purpose of habeas cor-

pus, the U.S. did have sovereignty there.

9

Professor Norman Dorsen introduces the issue of U.S.sovereignty in Guantánamo Bay.

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that there is no discussion in any of the briefsthat I’ve seen about the historical context orabout the theory of war that was present in the19th century and that led to the Eisentrager de-cision. Instead people have read this formal hold-ing and manipulated it for certain political ends.

“Now the same thing strikes me as signifi-cant and controlling with regard to the otherbig issue in the case; namely, whether theUnited States must recognize a writ of habeascorpus in areas where it does not exercise ‘sov-ereignty.’ Now there’s a long history of insularcases and other cases dating back at least 100years supporting limitations on the extensionof constitutional rights to particular posses-sions of the United States.

But the best reading of those cases is thatin situations where there were local cultures

that comes close to a controverted proceedingbased upon the adversarial system in whichopposing counsel make arguments, test thefacts and determine whether or not the sus-pects are properly confined.

The Ninth Circuit decision in Gherebi v. Bush (see side bar, page 9) consideredEisentrager and found in favor of the detaineesas well as Al Odah v. United States (see side-bar, this page) which found in favor of thegovernment. The thing that disturbs me aboutthese cases is the totally formalistic approachtoward Eisentrager. There is absolutely noattention paid to the question, ‘What was thehistorical and philosophical and jurispruden-tial context in which Eisentrager was decided?’

“In Eisentrager the court relies primarilyon precedents that were decided at the time of the War of 1812. In the 19th century wehad a different conception of what it meant togo to war. In the War of 1812 the entire nationwent to war. There was no clearly understooddistinction between combatants and civilians.It wasn’t until the Geneva Conventions in1949 that we began to take seriously the dis-tinction between civilians and the military.In 1812, there were a series of decisions bar-ring the courts from enemy aliens.

“In essence, the entire ideological structurethat supports the Eisentrager case is dead. Allthat’s left is a formal holding that in some cir-cumstances enemy aliens will not have accessto the courts.

“But that is not by any stretch of the imag-ination a precedent for what is going on todayin the Al Odah appeal to the Supreme Court.Now what is particularly disturbing to me is

to be respected — eg. Puerto Rico and thePhilippines — the United States refused toextend the Constitution in all its details. Thiswas, of course, before the due process revolu-tion that lead to the incorporation of the Billof Rights and the due process clause. It wasbefore the enormous transformation of Amer-ican law that led to the extension of constitu-tional rights even to American states.

“But one of the inferences that peoplemake from these old cases is that the UnitedStates recognizes the writ of habeas corpusonly in those places that are incorporated inthe United States or where there is sovereignty.Now the fact that disturbs me is that I have notseen anybody asking ‘Why are you talkingabout sovereignty? What should be the theory?What should be the fundamental argument that

A L O D A H V . U N I T E D S T A T E S O F A M E R I C A , 3 2 1 S . 3 D 1 13 4 ( D . C . C I R C U I T 2 0 0 3 )Al Odah is a case similar to Gherebi brought in the D.C. Circuit Court of

Appeals. The D.C. Circuit found that Eisentrager was dispositive of the issue.

It stated “[n]onetheless the Guantánamo detainees have much in common

with the German prisoners in Eisentrager. They too are aliens, they too were

captured during military operations, they were in a foreign country when cap-

tured, they are now abroad, they are in the custody of the American military,

and they have never had any presence in the United States.”

The D.C. Circuit extended Eisentrager’s analysis that the right to habeas

corpus is a procedural right that comes from the substantive protections of

the Constitution. Citing the Eisentrager’s court’s refusal to extend the 5th

Amendment to foreign enemy aliens and subsequent decisions refusing 4th

Amendment rights to nonresident aliens, the D.C. Circuit found that the aliens

in detention in Guantánamo Bay did not have the right to habeas corpus in

U.S. Courts. “If the Constitution does not entitle the detainees to due process,

and it does not, they cannot invoke the jurisdiction of our courts to test the

constitutionality or the legality of restraints on their liberty.”

The D.C. Circuit also found that Guantánamo Bay was not under the

territorial jurisdiction of the United States. The United States’ lease on

Guantánamo still vests ultimate sovereignty in Cuba (an issue also argued

between the majority and the dissent in Gherebi). The Circuit found that U.S.

criminal jurisdiction there comes from special maritime jurisdiction and is not

an extension of U.S. sovereignty. The D.C. Circuit held that Eisentrager did

maintain a distinction between territorial jurisdiction and sovereignty, and that

as no court currently exercises “territorial jurisdiction” over Guantánamo Bay

and the U.S. does not have sovereignty there, habeas corpus cannot be

extended to the detainees.

George Fletcher places the Guantánamo cases in historical perspective.

determines where and when the principle ofdue process applies and when it does not?’

“What kind of a profession is it that willresolve the most fundamental questions of thenature of America — the American constitu-tional system, the nature of American democ-racy — by asking questions that fail to go tothe heart of the matter? That fail to ask thefundamental questions, ‘What should be theproper understanding of the precedents in thepast? What should be the theory that governsthe question of where the Constitutionapplies abroad?’

Professor Rachel Barkow spoke about a select number of amicus curiae briefs andpointed to the fact that the world communityis watching the Guantánamo cases very closely.

“I want to tell you a little bit about someof the amicus curiae briefs (see sidebar, this page)in this case because I think you’ll find interest-ing some of the issues that these parties wantthe Court to consider. There’s a brief filed byretired military officers — in this case Americanmilitary officers — that aims to explain to theCourt the profound ramifications from a mili-tary point of view of the government’s positionthat no court can decide what’s going on inGuantánamo. [Amicus Curiae Brief of RetiredMilitary Officers in Support of Petitioners]The brief goes on to explain that the Courtshould take into account what this will meanfor American soldiers if they are taken captivein other countries. And in particular we mightnot have the same kind of reciprocity that we’dlike because then we won’t have the GenevaConvention applied to our soldiers.

G U A N T Á N A M O B A Y A M I C U S C U R I A E B R I E F S

Brief of Former American Prisoners of War, Filed by Jones Day.

This brief argues that the courts ought to assert review power over the

inevitable disputes about application of the Geneva Conventions, in order

to shape future application and enforcement of them. This brief is based on

concern over how American soldiers might be treated if captured by enemy

nations in future conflicts. It also argues that the D.C. Circuit decision has

left unclear the jurisprudence in the area of foreign habeas petitions, and

the Supreme Court should step in to review and clarify.

Brief of 175 Members of Both Houses of the Parliament of the United

Kingdom, Filed by Coudert Brothers LLP, Clifford Chance LLP, Blackstone

Chambers, and Peter Carter QC.

This brief notes that U.S. law grew out of U.K. traditions promoting the rule of law,

and both countries have since been leaders in promoting the rule of law interna-

tionally. It argues that observance of the rule of law requires that independent

judicial bodies have a chance to review disputes such as that of the petitioners.

Brief of Fred Korematsu, Filed by the Brennan Center, Cravath Swaine &

Moore LLP, Minami Lew & Tamaki LLP, Geoffrey Stone, and Eric Yamamoto.

This brief argues that the Unites States has unnecessarily restricted civil

liberties in times of perceived crisis throughout its history, and discusses

numerous examples from the Alien and Sedition Acts of 1798 to McCarthyism

during the Cold War. It argues that such restrictions have generally been

regretted in hindsight, and therefore that current assertions of military

necessity should be carefully scrutinized.

Brief of Legal Historians, Filed by New York University School of Law, Saint

Louis University School of Law, and Georgetown University Law Center.

This brief aims to make sure that the Court is fully informed as to the

historical application of the Writ of Habeas Corpus. It argues that in the

histories of Britain and America, the Writ extended not just to territories over

which the government had formal sovereignty but to all lands under its control.

It also argues that people designated “enemy aliens” historically have had

the right to challenge that designation under the Writ.

Brief of the National Institute of Military Justice,

Filed by Cowan Liebowitz & Latman PC.

This brief argues that a substantial body of law has developed and has been

used by the American military since the Eisentrager decision (which the

Government and the D.C. Circuit relied on). It also notes that a Writ of Habeas

Corpus has been issued for a prisoner at Guantánamo Bay before, by a military

court (Burt v. Schick, 23 M.J. 140 (1986)).

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Professor Rachel Barkow speaks on Amicus Curiae briefs.

12

jurisdiction, it’ll make diplomatic efforts verydifficult in the future. The United Stateswon’t be able to persuade other countries todo certain things because we’ll lose our credi-bility with other countries because we our-selves won’t be looking like we follow therule of law.

“It is interesting that there are argumentsthat are being aired in the context of a courtcase as opposed to being made in the politicalrealm. This raises the question ‘Why is thishappening before our Supreme Court? Why isthis taking place in that forum as opposed toother forums?’

“One answer I want to submit tonight isthat the Supreme Court basically asked forthis by deciding any number of issues in thepast few decades that don’t seem very con-cerned with formal jurisdictional bounds. Sofrom the perspective of these parties and therest of the world, it doesn’t seem at all odd totalk to the Court about international norms.

“The big elephant in the room in thismatter would be Bush v. Gore. The Court hasjust decided the presidential election. So, you

“One important query to ask is, ‘Is theSupreme Court in a good position to decidethis case?’ A second brief that is also veryinteresting is that of the sitting members ofParliament who have filed an amicus curiaebrief for the first time in our history. [Brief of 175 Members of Both Houses of theParliament of the United Kingdom of GreatBritain and Northern Ireland as Amici Curiaein Support of Petitioners] One thing that thevery existence of their brief is saying to theSupreme Court is, ‘Consider how you’re goingto look to the rest of the world when youdecide this case. What will this mean for theUnited States’ reputation? You’re an adherentto the rule of law and if it doesn’t look like theUnited States is adhering to the rule of law anymore. Think about the consequences of that.’

“There are several other briefs in thecase that are similar to that one; for example,briefs filed by former ambassadors and diplo-mats. [Brief of Diego C. Asencio, A PeterBurleigh, et al. as Amicus Curiae in Supportof the Petitioners] They discuss the fact thatif the Supreme Court decides that there’s no

know, nothing really seems to be off the tablein terms of the kinds of policy arguments youmight want to make to the Supreme Court.

“I think the decision will hinge on the factthat this is not sovereign territory. That Guan-tánamo Bay — despite the fact that it’s a largearea — looks like America in every fundamen-tal way that you might think. We control it.Our laws apply there. There’s a McDonald’sand a Pizza Hut and a Kentucky Fried Chickenthere. It’s got all the comforts of home.

“It will likely be a formalistic argumentthat the lease does not give sovereignty to theUnited States, that Cuba retains that sover-eignty. So the Supreme Court could say thatthat is in fact the basis on which it’s going todecide this case. It could adopt a very narrowreading of Eisentrager (which would be an ill-advised reading of the case because there arefundamental differences).

“In this case the Supreme Court is beingasked to consider whether or not the executivebranch has taken someone’s liberty away with-out any process at all and whether or not theexecutive branch can do that without any courtreview at all. It’s hard to think of a more fun-damental judicial task than this kind of reviewon habeas.

“It’s obvious from these briefs that theworld is watching this case very seriously.The world knows how this Supreme Courthas decided other cases. So for the Court inthis case to push them all aside and say, ‘No,actually, this is really a very strict jurisdictionalboundary. There’s a formalistic argument herethat we’re going to follow that will, I thinkactually undermine the Court’s legitimacyquite a bit in the eyes of the world community.

“My main conclusion is that because ofthe nature of these arguments, the fundamen-tal judicial character of them, and the fact that

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Brief of Military Attorneys Assigned to the Defense in the Office of Military

Commissions, Filed by Lt. Col. Sharon Schaffer, Lt. Com. Charles Swift,

Lt. Com. Philip Sundel, Maj. Mark Bridges and Maj. Michael Mori of the

Office of Military Commissions, and Neal Katyal.

This brief argues that the Court should not employ a blanket approach to

jurisdiction that would preclude case-by-case habeas review for those facing

military commissions, and that such case-by-case review is proper under

Eisentrager. It also notes that developments since the Eisentrager decision

have increased the jurisdiction of civilian courts in military matters.

Brief of 23 Former American Diplomats, Filed by Schiff Hardin LLP.

This brief argues that the decision of the D.C. Circuit has been criticized by

governments and international organizations. The effect has been both to

disadvantage our diplomats and to give dictatorial regimes perceived license

to wrongly incarcerate their own citizens in the name of fighting terrorism.

Brief of Nine Former Federal Appellate Judges, Filed by Jenner & Block LLP.

This brief argues that the position advanced by the Administration and accept-

ed by the D.C. Circuit, restricting the jurisdiction of civilian courts, threatens

the role of America’s judiciary in safeguarding the rule of law.

Guantánamo contains many of the trappings ofAmerican culture. Here, U.S marines are at theMcDonald’s in Guantánamo Bay. (AP Photo/Tomas van Houtryve)

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either judicial involvement or any kind of legalconstraints at all.

“In addition, the administration haspushed very far to argue for other aspects ofthe laws of war and even for the jurisdiction of military tribunals. So, for example, some ofthe crimes that are contemplated being triedby military commissions according to the documents that the administration itself hasproduced suggest that it’s possible that theadministration may prosecute some Talibansoldiers who are in Guantánamo essentially for murder, and that the charges are made onthe grounds that the accused weren’t wearingthe proper uniforms and therefore weren’tentitled to a belligerence privilege. In thiscase, any military activity that they undertook

our Supreme Court has been so willing tooverlook jurisdictional boundaries and othercontexts, it will be difficult for the Court tosay, ‘This is the case where we are going to cry jurisdictional wolf.’

Professor David Golove, meanwhile, dis-tinguished between the traditional wartimemodel and the military trial model in thinkingabout the court cases.

“Actually, there is a whole group of casesthat is now before — or coming before — theSupreme Court. There is the Guantánamo case,which we’ve been discussing. There is also theHamdi case, which involves an American citi-zen who was captured in Afghanistan and isbeing held in detention in the United States.Hamdi has been held incommunicado untilquite recently when he was finally allowed tosee a lawyer. A third case before the Court isthe Padilla case which involves another Amer-ican citizen, this time one who was actuallycaptured in O’Hare Airport.

“Each of these cases deals with militarydetentions and military trials. The Americanconstitutional tradition offers two ways ofthinking about the problem. One is a tradi-tional war model or military trial model: thewartime model. The other is a peacetimemodel, an ordinary criminal law model.

“The war model involves a great deal morediscretion by the executive. No one will be sur-prised to hear that the Bush administrationhas taken an extremely aggressive view on this,what the administration calls the war on ter-rorism. The Bush administration has asserted avery aggressive interpretation of the war modeland the nature of the President’s powers. So,for example, constitutional rights as we knowthem don’t apply under the war model that theexecutive is currently applying to individuals.

“The Bush administration has adopted a very strict interpretation of internationalhumanitarian law such that the normal GenevaConvention (see sidebar, this page) protectionsdo not apply to the detainees in Guantánamowhether they were connected in some waywith Al Qaeda or with the Taliban. More,they argue that international human rights lawdoesn’t apply because the detainees are beingheld in Guantánamo and therefore not in theUnited States. This amounts essentially to thecreation of a kind of offshore territory whichmight be described, and some have described,as a kind of rights-free zone, a zone in whichthe executive can act without consideration of

either against an individual or even againstproperty would be a crime punishable by aU.S. military commission in Guantánamo.

“One last element of this aggressive inter-pretation of the war model has been that theadministration has argued strongly for a dimin-ishing distinction between U. S. nationals caughtup in the war on terrorism and foreign nation-als. This is something that’s been taken from the ex parte Quirin case (see sidebar, page 14).

“The war model comes principally out ofthe long history of U.S. involvement in variouswars, but perhaps at least from a judicial pointof view, most importantly the Civil War andWorld War II. These were total war situations.

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G E N E V A C O N V E N T I O N S

The Geneva Conventions are treaties that form the basis of international law gov-

erning armed conflict. Their foundation dates to 1863 when Henri Dunant formed

the Red Cross to take care of wartime casualties. In fear of its workers’ safety,

Dunant persuaded the Swiss government to convene 16 countries in Geneva and

grant international recognition to the Red Cross. From this meeting in 1864

came the first piece of the international laws of war, the Geneva Convention for

the Amelioration of the Condition of the Wounded in Armies in the Field. By

WWII, there were two more conventions which applied to war at sea and prison-

ers of war. In 1949, these conventions were revised, a fourth on civilians during

war was added, and the lot was combined as the “Geneva Conventions of 1949.”

Nearly 190 countries, including the U.S., have ratified the Geneva Conventions

and made them a binding treaty. In part, the conventions aim to protect prison-

ers of war by ensuring that they “must at all times be humanely treated.” Those

nations that violate the conventions may be tried by the International Criminal

Court as war criminals. In 1977, protocols augmenting the Geneva Conventions

provided prisoner of war status to those fighting against “colonial domination”

and “alien occupation.” The U.S. has not ratified these protocols, but does con-

sider some of them as “customary international law.”

definition

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And there’s a serious question I think aboutwhether or not one wants to apply the modeldeveloped in this context to what we now callthe war on terrorism.

“There are a number of very importantdistinctions between the current war and pastwars. The likelihood in this war is that inno-

cent bystanders will be mistakenly implicated.The enemy consists not of a regular army butis a conspiratorial organization that workssecretly and in a decentralized way, geographi-cally and even organizationally.

“Secondly, the principle of nationalitydoesn’t apply in the same way. In the tradi-

tional war model, the fact that a person is anational of the state with which you are atwar makes them in law presumptively hostilejust by virtue of their nationality. This doesn’tapply in the war on terrorism because there is no nationality with which the UnitedStates is at war.

“Third, in a traditional war the durationof the war is more easily predictable than inthe war on terrorism, which may last foreveror at least for generations. Therefore, the pos-sibility of mistaken actions takes on a height-ened significance.

“A final important difference lies in thenature of the principle of reciprocity. In tradi-tional wars states have reasons to moderate theway they treated their detainees because of theconcern about how their own detainees wouldbe treated in turn by the other state with whichthey’re engaged in conflict. That, too, is absentin this context and weakens traditional protec-tions of individual rights.”

Professor Ruth Wedgwood then spoke onboth the importance of considering enemycombatants with due regard for their politicaldanger and the significance of using militarycourts to try enemy combatants.

“Let me point out an instance of not usingwhat David [Golove] calls a model, and whatI would call a legal regime of war, a very welldeveloped, historically grounded legal regimeof war. That instance would be the moment in1996 when, at least allegedly, Sudan offered toturn over bin Laden to us or to the Saudis.And Louis J. Freeh reportedly told Janet Renothat we didn’t have the evidence to hold himas a criminal defendant.

“Prosecutors know that you have to beprepared to go to court and prove your facts

E X P A R T E Q U I R I N , 3 17 U . S 1 ( 19 4 2 )

In 1942, a group of German soldiers snuck into the United States by subma-

rine with explosives and detonators. Upon landing, they buried their uniforms

and proceeded into the United States with plans to attack U.S. military infra-

structure. They were apprehended by the FBI. President Roosevelt appointed

a Military Commission to try the prisoners. On the same day the President

declared “all persons who are subjects, citizens or residents of any nation at

war with the United States or who give obedience to or act under the direction

of any such nation, and who during time of war enter or attempt to enter the

United States…through coastal or boundary defenses, and are charged with

committing or attempting or preparing to commit sabotage, espionage, hostile

or warlike acts, or violations of the law of war, shall be subject to the law of

war and to the jurisdiction of military tribunals.”

The defendants challenged the constitutionality of the President’s procla-

mation. They argued that domestic courts, with their due process protections

and jury trials, should have jurisdiction over the case and that the President

lacked the authority to call the commission.

The Supreme Court found for the government. In times of war and grave

public danger, the court found that decisions regarding the detention and trial of

prisoners are “not to be set aside by the courts without the clear conviction that

they are in conflict with the Constitution or laws of Congress constitutionally

enacted.” In this case, the Court found that Congress, in the Articles of War, had

specifically found that violations of the laws of war could be tried by military tribu-

nal. The Court reserved the question as to whether the President could appoint a

commission without direct statutory authority. The Court then examined whether

the defendants’ acts violated the laws of war, and found that they did. Thus, the

military tribunal, and not the civil courts, had jurisdiction over the defendants.

Regarding the constitutionality of military tribunals, the Court found that

although military tribunals do not include all the 5th and 6th Amendment pro-

tections provided by civil courts, they were not unconstitutional. The Court

stated that military tribunals existed at the time the Constitution was enacted,

and that the 5th and 6th Amendments were not enacted to expand the right

to a jury trial that existed under Article III Section 2. The Court held that the

Constitution meant to ensure a continuance of jury trials in civilian courts

(which already existed at its enactment), but did not intend to expand jury

trials to areas where they did not exist.

14

Professor David Golove discusses the laws of war.

beyond a reasonable doubt by a very narrowrange of evidence. And if you can’t do thatquickly, you don’t hold the person. So that’swhat Louis J. Freeh said. We let bin Ladengo and he went to Afghanistan and the restis a very sad history. And we weren’t perhapsin the White House aware of who bin Ladenwas at the time. More, his reputation, whichhad suffused the Grand Juries investigatingthe 1993 World Trade Center attack, couldnot be revealed to the White House becauseyou couldn’t share criminal justice informa-tion and intelligence information. All of ourfirewalls, all of our well-intended safeguardsof the seventies had a kind of unhappy syn-ergistic effect.

“We are in a war. We still have troops onthe ground in Afghanistan. The Taliban iscoming back over the border from Pakistantrying to run the U.N. out of the southeast ofthe country. This is not a notional war, it’s nota metaphor, it’s not the war on drugs or thewar on poverty. It’s a war on the ground withsoldiers being shot at. And certainly the acts of September 11th were recognized by NATO,by the Congress, and by the U.N. SecurityCouncil as acts of war. These were armedattacks upon the U.S. that warranted the U.S.legally going to war against both the Talibanand Al Qaeda. And Congress voted an author-ization for the use of force to George Bush tosay that he could use force against the nations,organizations and persons he determines areresponsible for the 9/11 attacks. It is a war.

“It’s a different war in the sense of how youfight it and how you quash Al Qaeda’s networkbut in its destructiveness to innocent civilians, itis a war. In the attempted harm of decapitatingmajor national institutions, it is a war.

“The fourth plane was supposed to hiteither the White House or the Congress. Ithink we’d have a very different gestalt aboutthe whole thing if that had happened. It’s alegal war. No one declares war any more to besure. But all of us who do international lawknow that Congress never declares war anymore because war as a word is illegal, somewould say, after the U.N. Charter and theKellogg-Briand Pact. So all that Congress ever does now is to authorize the use of force.

“I will join with everybody in saying weshould take international law seriously. Andcourts should look to international law. There isa regime of law out there. It depends upon a deeply embedded practice of reciprocities;countries are afraid to deviate from the orthodoxtreaty language because they fear what will hap-pen to their own troops. Under that law of wareven a lawful combatant, a German soldierwearing a uniform, is subject to internment untilthe conflict is over, even when you don’t knowhow long it is going to take. He doesn’t get acourt date. He doesn’t get a lawyer. He has theblessing of not being shot on the battlefield.

“In World War II we had 418,000 Germanand Italian POWs, lawful combatants, held inthe continental U.S. No black hole of the RightsFree Zone there. But as far as I can tell, not asingle POW in World War II had a petition ofhabeas corpus entertained in U.S. courts. Yes, ifthey were tried for criminal offenses. But no, ifthey were challenging their civil internmentwhose purpose is two-fold. The first purpose isto keep them from returning to the fight so thewar can ultimately be over. The second is to savetheir lives on the battlefield. Believe it or not theinternment rule is designed as a humanitarianrule. Because with most armies and most wars,if they couldn’t be sure that taking the surrenderof their adversary would take that adversary outof the fight, you know what they would do?Just what happens in the first scene of SavingPrivate Ryan. They would shoot them. So theobject of the internment rule is to try to makeit easier to create an incentive system, if you like,for armies to take surrenders to save the lives ofsoldiers who want to surrender. If you deviatefrom an incentive system I think you’ll not likethe results.

A R T I C L E I I I C O U R T S

Article III courts are courts established by Article III of the Constitution. Article

III vests the judicial power of the United States in the Supreme Court and “such

inferior courts as the Congress may from time to time ordain and establish.”

Article III courts are of limited jurisdiction. The federal judicial power is limited

by Article III Section 2, which states that it extends to 1) cases arising under the

Constitution, federal laws, or treaties 2) cases affecting Ambassadors 3) cases

of admiralty and maritime jurisdiction 4) controversies in which the U.S. is a

party 5) controversies between States 6) controversies between a State and

citizens of another State 7) controversies between citizens of different States 8)

controversies between citizens of the same State claiming lands under grants

of different States and 9) controversies between a State or its citizens against

a foreign State or its citizens. District Courts, United States Circuit Courts of

Appeals and the Court of International Trade are some of the “inferior courts”

that Congress has established.

definition

Ruth Wedgwood defends the Bush Administration.

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T H E N Y U R E V I E W O F L A W & S E C U R I T Y | A P R I L 2 0 0 4

Q: So the British government is misinformedin this case?

A: I just told you exactly what I said. That isthe correct fact.

Q: Nobody picked up in Pakistan?

A: That is in the Afghanistani theater.

Q: The Gambia is not in Afghanistan, not inthe Afghani theater.A: Every enemy combatant who is held in JTF Guantánamo at Camp Delta came fromthe Afghanistani theater.…

Emma Reverter is a Spanish journalist who runsher own foreign news agency called NY News andResearch. This fall, she spent four days visiting theGuantánamo Bay Detention Center as part of apress pool run by the Foreign Press Center. Whilethere, she conducted interviews with some of themilitary officials. Below is an excerpt of an inter-view that Emma and fellow journalists ReinerLukyen and Bill Cameron conducted withGeoffrey Miller, who is Joint Task Force (JTF)Guantánamo’s overall commander.

E X C E R P T S F R O MI N T E R V I E W : Q: Could you tell me how many of the prison-ers that are being held here were picked up inAfghanistan and how many in other countries?

A: The enemy combatants who have beendetained here at JTF Guantánamo were allpicked up on the battlefield in the Afghanistantheater, so all came from Afghanistan.

Q: There is certainly one case confirmed bythe British government of an Iraqi who livedin Great Britain and was picked up in TheGambia and was transferred from The Gambia*to Guantánamo…

A: Every enemy combatant who is held in JTFGuantánamo was captured in the Iraqi, pardonme, in the Afghanistan theater and came fromAfghanistan to JTF Guantánamo.

“George [Fletcher] and I used to havebattles over whether Al Qaeda and theTaliban were lawful combatants. Even if theywere lawful and were interned until the end of the conflict, that’s what you do when yougo to war. You don’t have Article Three Court(see sidebar, page 15) judges roaming the bat-tlefields, no matter where the combatants areultimately interned. This is a matter of ArticleFive of the Third Geneva Convention (fordetails on the Geneva Conventions, see side-bar, page 13). The claim is that in the case ofdoubt you have to have a competent tribunaland isn’t that an Article Three Court?

“It doesn’t have to be a civilian court. It’snot a court martial in the U.S. traditional prac-tice. Here it’s much harder to show who’s acombatant. What the U.S. has tried to do toadapt the norm to the situation is to have veryserious screening processes.

“The 10,000 original people who wereeither caught or turned over were screeneddown to 600 in double screenings in Afghan-istan, first in Guantánamo, and then on aperiodic basis thereafter. I’d also note that theInternational Red Cross position is that ifyou’re an unlawful combatant then you are notincluded in the Third Geneva Convention;you’re under the Fourth Geneva Convention.Under the Fourth Geneva Convention, any-body who is definitely suspected of hostileactivity can be interned preventively until thatdanger has passed. And the review processmust be done by a confident body.

“The Valesquez-Rodriquez case of theInteramerican Human Rights Commission,which was about Honduran death squads,reminded every government that they have an affirmative duty to police not only againsttheir own misconduct but against the miscon-duct of private actors as well.

“And if you have a private network like Al Qaeda that’s killing innocent people, it isengaging in a truly catastrophic human rightsviolation. To all of us, I think the word humanrights, or rights is almost a debate stopper. Ithink that we have to understand that thereare rights claims on both sides of the equationhere. My closing point is that if lawful com-batants can be interned until the end of thewar, then almost by definition, unlawful com-batants can be interned as well.

A Visit to Guantánamo Bay: OneJournalist’s Attempt To Find Answers

U.S. Army Maj. Gen. Geoffrey Miller at Guantánamo Bay Naval Station. (AP Photo/Alan Diaz)

17

The U.S. government has agreed toestablish military tribunals to try six of the640 detainees at Guantánamo Bay. Accordingto the Department of Defense, these commis-sions will involve “the legal presumption ofinnocence; a requirement for proof of guiltbeyond a reasonable doubt; representation bya military defense counsel free of charge, withthe option to retain a civilian defense counselat no expense to the U.S. government; anopportunity to prevent evidence and call wit-nesses; and a prohibition against drawing anadverse inference if an accused chooses not to testify.” Australian detainee David Hicks isamong those designated for military tribunal,although no specific charges have been madeagainst him. So far, only two of the six havebeen charged: Ali Hamza Ahmed Sulayman al Bahlul of Yemen and Ibrahim AhmedMahmoud al Qosi of Sudan. Both men wereallegedly bodyguards and propagandists forOsama Bin Laden and were charged withconspiracy to commit war crimes.

The following are profiles of three lawyersinvolved in the tribunals:

Colonel Frederic L. BorchIII is the chief prosecutorfor the Department ofDefense’s Military Com-missions. He is in charge of directing the overall pros-ecution efforts of the UnitedStates in Military Com-missions. He is a career army

lawyer who supervised the successful prosecu-tions of 13 drill sergeants accused of sexualmisconduct at Aberdeen Proving Ground in1997. Borch graduated from Davidson Collegeand received his law degree from the Universityof North Carolina and an LL.M. from theUniversity of Brussels in Belgium.

Colonel Will A. Gunn is the Chief Defense Counselfor the Department of De-fense’s Military Commis-sions. Gunn supervises astaff of six lawyers in “alldefense activities and theefforts of Detailed DefenseCounsel to ensure zealous

representation of all Accused referred to trialbefore a military commission.” He is a graduateof the U.S. Air Force Academy and HarvardLaw School. He was a White House Fellowduring the presidency of George H. W. Bush.

Joshua Dratelis assisting in the defense ofAustralian detainee DavidHicks, joining Hicks’ mili-tary lawyer Major MichaelMori and his Australianadvocate Stephen Kenny.Dratel, a Harvard graduate,defended Osama bin Laden’s

personal secretary after the 1998 U.S. Embassybombings in Africa. Dratel also defended AlQaeda member Wadih el Hage after the bomb-ings in Tanzania and Kenya. (In 2001, Hagewas convicted and sentenced to life withoutparole and his case is on appeal). Dratel serveson the Board of Directors of the NationalAssociation of Criminal Defense Lawyers.

Profiles: Lawyers involved in theMilitary Tribunals at Guantánamo

Colonel Will A.Gunn

Colonel FredericL. Borch III

F R O M T H E

M I D D L E E A S T

“The suppression of information

about the recent arrests at

Guantánamo has fed [an]

already growing mistrust of the

military establishment and crum-

bling faith in the justice system.”

Ramsey Al-Rikaby in Al-Ahram Weekly Online: 27 November – 3 December 2003 (Issue No. 666)http://weekly.ahram.org.eg/2003/666/in2.htm

news digest

Q: I wondered whether you could tell me howyou personally feel about the fact that the deten-tion facility that you are running is beingregarded by a lot of people in Europe and yourown country as a Gulag, a Concentration Camp?

A: JTF Guantánamo’s mission is to detainenemy combatants to be able to develop intelli-gence to help us win the global war on terror.We are detaining these enemy combatants in a humane manner. I am enormously proud ofthe mission that is ongoing in this JTF….

Q: Don’t you feel in any way hurt by theseaccusations?

A: I am a professional soldier. The mission ofmy country is to help win the global war onterror and so I am doing this mission in accor-dance with these procedures that Americauses….We are making you, your families, andour families, safer every day.…

Q: I am sure some of these people held hereare probably the most courageous and bravestof their generation, just like Special Forcespeople would be in your country…Now, youwould expect Special Forces soldiers capturedin a theater of war to be held completely underthe provisions of the Geneva Conventions (seesidebar, page 13). Do you think that thesesoldiers should be entitled to that as well?

A: They are suspected terrorists or suspectedof supporting terrorism. They are not soldiersand they are not brave people. They are terror-ists who go about attacking the innocent, andso you should never give them that right…They are not soldiers and not defending theircountry, they are attacking the innocent.

Q: So, therefore they should not be under theprotection of the Geneva Conventions?

A: The United States is detaining enemy com-batants in the ongoing global war on terror in accordance with the Geneva Conventions,except where military necessity dictates a difference. We are enormously proud of thedetention operations that we have. We aredetaining them in a humane manner.

*According The Guardian, Bisher al-Rawi, an Iraqi national,lived in Kingston in Southwest London. He was arrested in The Gambia in West Africa and handed over to the U.S. byGambian officials. He is now being held at Guantánamo Bay.(The Guardian, London, p.4, January 10, 2004)

Joshua Dratel

18

Abram Shulsky, the actual head of the Officeof Special Plans, but a functionary presumablytoo obscure for Robbins to caricature effec-tively. The Office of Special Plans is present-ed, with presumably deliberate absurdity, as aStraussian cult. The glimmer of truth in thiswild caricature lies in Strauss’s idea that, inthe midst of a dangerous geopolitical struggleagainst a lethal foe, foreign policy elites are

fully justified in lying to the public to achievea higher purpose. Strauss also believed thatAmericans were weakened in their confronta-tion with the Soviet Union by a debilitating“moral relativism” that he associated with

liberalism. To cure this moral relativism and steel Americans for the Cold War,

he taught, it was necessary to deceivethem into believing that they were

involved in a battle of pure Goodagainst infinite Evil. What Robbins

suggests with his Straussiancabal, needless to say, is that a

government that habitually lies for a higher cause cor-

rodes the basis of demo-cratic politics.

At the emotionalcenter of the play arethree soldiers sent off

to war by their families;two husbands and a young woman

named Jen-Jen Ryan. One soldier, culturallyilliterate and therefore unable to distinguishthreatening behavior from ordinary Iraqibehavior, shoots and kills an entire family.Jen-Jen suffers the fate of Jessica Lynch, cap-tured by Gommorah’s fedayeen.

To connect the story of the soldiers andthe elitist strategizing of the Office of SpecialPlans, Robbins introduces a cadre of embeddedjournalists. Overseen by Colonel Hardchannel,the reporters are given strict rules designed toperpetuate the lies of the war’s creators. “You’remy bitch,” Hardchannel tells one of them. Therules for the embeds insist that the fightingforces are to be referred to solely as coalitionforces, never as American troops; that friendlyfire is not be mentioned; and that discontenton the part of the liberated Babylonians is offlimits. For example, the use of a tank to bringdown the statue of Saddam Hussein, and thesmall size of the crowd that watched, is forbid-den knowledge to American audiences back

home. Fresh from the war in Bosnia and eagerto be part of the action, the embeds agree atfirst to adhere to the rules. The story of theplay is the story of their growing disillusion-ment and their eventual insistence on telling at least bits and pieces of the story of death,destruction and ingratitude in Gommorah.

As further commentary on the politicaland military debacle that Robbins presents, avideo screen backdrop juxtaposes Americanmusic and references to popular culture withthe events in Babylon. In other words, theAmerican predilection for fun has containedits own narrative of American culture allalong. He takes us from the foxtrottingAmerican bandstanders through the music ofthe sixties (“War: What Is It Good For?”) as if to say that the innocent can become aware.Like the soldiers, the embeds learn in Babylonthat the sweetness of their lives has beenbetrayed, intentionally and with completedisdain, by the powers that be.

As the play winds towards its all too pre-cious in-medias-res ending, Robbins’s didac-ticism becomes increasingly strident. “Thebrilliance of terror” lies in its ability to be “a never ending utility.” “Terror is a religion.”Americans, it seems, will do anything to com-

The Program Notes to Tim Robbins’ playEmbedded — notes which consist of quotesintended to illuminate the play’s irony beforethe actors even take the stage — begin with a quotation from Bertold Brecht. “War is likelove, it always finds a way.” The reference toBrecht provides one way to appreciate thisrather pedantic play. Brecht used theater toprovoke his audiences into rethinking theworld in which they were living, that is, thedecades that saw two world wars and succes-sive German governments that varied betweenincompetence and fascism. To wake up hisaudiences to the political absurdities that sur-rounded them, he developed his own brandof the Greek chorus, his own version of themodern musical and a host of didactic tech-niques aimed more to educate than to seducewith plot or emotion.

Robbins has written and directed Embeddedin a Brechtian spirit, to expose the way thatlies were used to con the American peopleinto what he sees as an unnecessary war inIraq. The play is set in the land of the Bible,where Babylon substitutes for Baghdad andGomorrah for Iraq. For his agit-prop chorus,wearing masks, yet all readily identi-fiable public servants,Robbins has assem-bled a group ofsix, meant tocomprise thePentagon’s infa-mous Office ofSpecial Plans. Theyinclude barely dis-guised neo-cons andtheir administration fel-low-travelers: Gondola(Condoleezza Rice), Cove(Karl Rove), Dick (Cheney’sown name suffices), PearlyWhite (Richard Perle), Rum-Rum (Donald Rumsfeld), andWoof (Paul Wolfowitz). Together, they chanthomage to political theorist Leo Strauss, aprofessor at the University of Chicago whotaught, among others, Wolfowitz as well as

ROBBINS HAS WRITTEN AND DIRECTED EMBEDDED IN A

BRECHTIAN SPIRIT, TO EXPOSE THE WAY THAT LIES WERE USED

TO CON THE AMERICAN PEOPLE INTO WHAT HE SEES AS AN

UNNECESSARY WAR IN IRAQ.

“

”

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Leo Strauss Onstage: Embedded, A Play Written and Directed by Tim Robbins

19

1. Evan J. Wallach, “Afghanistan, Quirin, andUchiyama: Does the Sauce Suit the Gander?”Army Lawyer 18 (2003).

2. Amy E. Eckert and Manooher Mofidi,“Unlawful Combatants” or “Prisoners of War”:The Law and Politics of Labels,” 36 CornellInternational Law Journal 59 (2003).

3. Michael Beattie and Lisa Yonka Stevens,“Comment: An Open Debate on UnitedStates Citizens Designated as EnemyCombatants: Where Do We Go From Here?”62 Maryland Law Review 975 (2003).

4. Jordan J. Paust, “Postscript: AntiterrorismMilitary Commissions: The Ad Hoc DODRules of Procedure” 23 Michigan Journal ofInternational Law 677 (2002).

5. Daveed Gartenstein-Ross, “Note: ACritique of the Terrorism Exception to theForeign Sovereign Immunities Act” 34

bat the boredom of loneliness in search of“trustworthiness” and constancy, even if itcomes in the form of lies, even if it is war thathas arrived to distract and entertain them.Above all, they will willingly accept the dramasthat the war has packaged for them, as the storyof private Jen–Jen makes clear. The real life ver-sion of Stephen Spielberg’s emotionally over-charged war story Saving Private Ryan screamsout that her story has been romanticized, politi-cized, TV-dramatized and above all, grossly dis-torted. She was not really rescued, or not in theway the Pentagon wanted Americans to believe,and she was protected, not abused, by herWestern-educated Iraqi doctor. Moreover, inconversations between Jen-Jen and her parents,it becomes clear that Bush’s “volunteer” armyconsists largely of young men and women,driven to enlist by lack of economic opportunity.

The increasing anger of the music crescen-does along with the growing morality in thesounds of Bob Dylan’s “Masters of War,” asong written to protest the Vietnam War. Thelyrics impugn the shameless duplicity, disre-gard for bloodshed and undisguised imperial-ism of the American government. “I can seethrough your masks,” Dylan cries. “You playwith my world like it’s your little toy…LikeJudas of old, You lie and deceive/A world warcan be won, you want me to believe.”

Robbins wrote Embedded even as the factof the lies about weapons of mass destruction,about the Iraqi attitudes towards their “libera-tors”, and about the death toll on both sideswere just beginning to grace the headlines ofthe country’s major media outlets. In criticizingthe Germans in WWI, Brecht had an answer:a socialist society. In his song, Dylan foreseescosmic justice - “All the money you make willnever buy back your soul.” Whereas for Brecht,while justice comes in the form of the triumphof the common man, and for Dylan it comesin eternal punishment: “Even Jesus wouldnever forgive what you do.” For Robbins, thereis no easy recompense for the problem of asociety so full of admiration for the lie, so will-ing to be duped as to sell its soul and its future.And it is for this reason, in part, that the playhas no ending, merely fades into the silenceand empty stage that precede the curtain call.A work in progress, Embedded’s only hopefulsign, perhaps, is its lack of an ending.

- Reviewed by Karen J. Greenberg and Stephen Holmes

New York University School of Law Journal ofInternational Law and Politics 887 (2002).

6. Jesselyn A. Radack, “United States CitizensDetained as “Enemy Combatants”: The Rightto Counsel as a Matter of Ethics” 12 William& Mary Bill of Rights Journal 221 (2003).

7. Stephen I. Vladeck, “Note: The DetentionPower” 22 Yale Law & Policy Review 153(2004).

8. Thomas F. Powers, “Due Process forTerrorists?” The Weekly Standard, January 12,2004, p. 17.

9. David Rose, “Guantánamo Bay on Trial,”Vanity Fair, January, 2004, p. 88.

10. Jenny S. Martinez, “Towards anInternational Judicial System” 56 Stanford Law Review 429 (2003).

Recommended Articles on Guantánamo Bay

Journalist Emma Reverter took this photo of the navy base at Guantanamo Bay during her visit this fall. See Emma’sinterview with Geoffrey Miller on page 16.

eight times more lethal than those carried outby groups without state support or assistance.

In the 1980’s the motives of terroristswere also comparatively straightforward andmainly revolved around nationalist and sepa-ratist aspirations and revolutionary and ideo-logical ambitions. Back then, the opportunitiesfor terrorism took place against the backdropof the Cold War and existed in the ethno-nationalist conflict.

The policing response to terrorism inLondon produced a strategic policy that wasadopted by all U.K. police forces. This policyincluded intelligence-focused operations thatrelied heavily on the partnership between thesecurity service (MI5) and the police; high visibility and targeted police operationsintended to disrupt, detect or deter terroristactivity at the reconnaissance, execution orescape phases of terrorist operations; highlyeffective post-event investigations that madethe most effective use of well-trained spe-cialist investigators, with access to modernequipment and supported by expert forensicscientists; and community reassurance, part-nership and consequence management.

overcoming the traditional defenses of coun-terterrorism. State sponsors utilized intelli-gence services, embassies, and state airlinesand provided training, financing and equip-ment. Although there were other non-state-sponsored terrorist groups active during the1980’s, research by Bruce Hoffman of theRAND Corporation noted that the identifiablestate-sponsored terrorist acts at that time were

20

T H E N Y U R E V I E W O F L A W & S E C U R I T Y | A P R I L 2 0 0 4

F R O M C A R L O S T H E J A C K A LT O O S A M A B I N L A D E N :T H E B R I T I S H P O L I C ER E S P O N S E T O T H ET E R R O R I S T T H R E A TKeith Weston is the Detective Chief Superintendentfor the Metropolitan Police Anti-Terrorist Branchat New Scotland Yard. Below are his thoughts onlaw enforcement and the move towards a warmodel in the fight against terrorism.

Measures used to combat terrorism havemuch in common with those that are used todeal with serious crime. The modern-day seri-ous criminal can now achieve a level of harmthat twenty years ago was almost exclusively

the preserve of ter-rorists. It followstherefore, that lawenforcement agen-cies developed simi-lar methodologies todeal with both ter-rorists and seriouscriminals.

Twenty yearsago the main sus-pects for interna-tional terrorismwere the state spon-sors who used the

services of surrogate operators. The criticalimportance of state sponsorship was that itelevated the capability and operational impactof small groups to deliver deadly force, whilst

Keith Weston

MEASURES USED TO COMBAT TERRORISM HAVE MUCH IN COM-

MON WITH THOSE THAT ARE USED TO DEAL WITH SERIOUS CRIME.

THE MODERN-DAY SERIOUS CRIMINAL CAN NOW ACHIEVE A LEVEL

OF HARM THAT TWENTY YEARS AGO WAS ALMOST EXCLUSIVELY

THE PRESERVE OF TERRORISTS.

“

”

S T A T I S T I C S F R O M G U A N T Á N A M O B A Y

Detainees originally taken in Afghanistan: approximately 10,000

Detainees brought to Guantánamo: approximately 800

Charges filed against prisoners: 2

Detainees Released*: 119

Detainees Transferred for detention in home countries:

4 to Saudi Arabia, 1 to Spain, 7 to Russia

* as of March 24, 2004

news digest

The View from Abroad

21

If we now apply the analytical techniquesthat have been developed over the last twentyyears — suspect, means, motive and opportu-nity — to the terrorist threat of today, we cansee a significant development of complexity,diversity and unpredictability. In personalityterms we can see the shift from “Carlos theJackal” to “Osama bin Laden.”

The one consistent element of all formsof terrorism is the intention to terrorize. Insimple terms, that means creating the fear ofviolence. Given that fear of harm is also theessential ingredient of extortion, it was only a matter of time before terrorist-engenderedfear was applied for profit. It is clear that theterrorist groups that survived the last twodecades are those that have diversified theirincome sources and learned the tricks ofmoney laundering.

The comparison of the nature of terror-ism over the last twenty years has taught usthat in order to defeat it, we must be aware of and study the complication, diversificationand unpredictability of the phenomenon. It is also essential not just to concentrate on thesuspects, means, motives and opportunities of terrorism, but also to consider the chang-ing nature of the target.

The crucial issue of principle in the U.K.,which is critical to the effective developmentof counterterrorism, is the commitment tocriminal justice as the preferred route. Theprinciple is that terrorists should be brought

to justice for their crimes wherever this ispossible. It therefore follows that officialagencies engaged in counterterrorism mustoperate in compliance with the law and beaccountable to the criminal justice process.It is important that law enforcement agenciesseek, transparently, to uphold the law.

A consequence of counterterrorism operating within the constraints of a liberaldemocracy and in compliance with the crimi-nal justice process is that there is a need forsocial realism as to what can be achieved. Putbluntly, reduction and containment is realistic inthese circumstances: the ambition of eradicatingthe threat is unrealistic. Subject to the vicious-ness of the threat, most citizens recognizethat there is a balance to be struck betweenenforcement effectiveness and personal free-dom and risk.

The tactical implementation of a coun-terterrorism strategy should include a menuof security options designed to impact any or all of these areas. In the U.K. this has led to the adoption of Operation Rainbow.This operation has a menu of 26 high visi-bility policing initiatives that range fromvehicle check-points to uniformed support to surveillance teams. Above all, the mostimportant foundation for both an effectivecounterterrorism strategy and a serious crimestrategy is the priority of intelligence collec-tion. This is an absolutely critical investment,and it should be the last element to be

adjusted (i.e. reduced), according to percep-tions of the threat.

The world of emergency planning hasproduced the compelling concept of an ‘allthreats, all hazards’ approach to draw togeth-er all the relevant resources to a particularchallenge. This approach provides a continu-um of threats and hazards supported by anintegrated and cohesive structure to respond,manage the crisis and provide for a speedyreturn to normality.

The message for the future is that therewill be ever greater demands for people andorganizations to see beyond disciplinaryboundaries, to challenge bureaucratic barriersand to learn from experience.

A D J U D I C A T I N GC O U N T E R T E R R O R I S M : T H E I S R A E L I M O D E LOn February 23, Dr. Yigal Mersel, SeniorLegal Assistant to President Ahoron Barak,of the Supreme Court of Israel, an Emile NoelFellow and Hauser Research Scholar at NYUSchool of Law, addressed a luncheon seminaron the topic of “Adjudicating Counterterrorism:The Israeli Model.” The paper and the discus-sion afterwards focused on several issues includ-ing two points of note: 1) The tendency of theIsraeli Supreme Court to defer to the decrees of the executive, thereby refusing to hear abroad range of cases, and 2) The fact that theIsraeli Supreme Court is aware of internationallaw and standards when it makes its decisions.

Below is a section from a paper that Dr.Mersel wrote on this topic.

Which Law? A Three-Step Doctrine A critical question to ask is which standardsand legal criteria the Court tends to employ inits counterterrorism jurisprudence. Indeed, theIsraeli counterterrorism adjudication model ischaracterized not only by procedural features,such as standing and justiciability, but also bysubstantive ones. In most of the counterterror-ism cases, the court applies a three-step analy-sis. It reviews the challenged state activity underthree different normative frameworks. The firstis international law. In cases involving theadministrated territories the Court will almostalways review the action under the FourthGeneva Convention (see sidebar, page 13), aswell as customary and conventional internationallaw. For instance, when the Court ruled on theissue of the legality of using flechette shells, itThe Israeli Supreme Court. ©GPO Photos.

Indeed, this three-step analysis sketches a few interesting characteristics of Israelicounterterrorism adjudication. First, theCourt envisions the terrorist threat as aninternational, rather than solely domestic,problem. Accordingly, the standards for adju-dicating counterterrorism cases, as well asthose involving human rights and nationalsecurity, are international standards. Second,the war against terrorism is an exceptionalcircumstance but has not been treated withexceptional law. The Court usually refers toexisting international law of war and human

referred to theUnited NationsConvention onProhibitions orRestrictions on the Use of CertainConventionalWeapons WhichMay Be Deemedto be ExcessivelyInjurious or to

Have Indiscrim-inate Effects

(1980). When considering conditions in deten-tion camps, it referred to the InternationalCovenant on Civil and Political Rights (1966),the Guidelines of the Committee of Ministersof the Council of Europe on Human Rights and Fight Against Terrorism and the The Bodyof Principles for the Protection of All PersonsUnder Any Form of Detention or Imprison-ment (1988). When it established the propertiming for judicial review of detentions, itreferred to the European Court of HumanRights’ jurisprudence on Article 5 of theEuropean Convention on Human Rights. TheCourt’s perspective is that “Israel is not an iso-lated island. She is a member of an internationalsystem,” and, therefore, international standardsare applicable to counterterrorism adjudication.

The second set of laws the Court employsin these cases is Israeli administrative com-mon law. The Court conceives of any Israelimilitary action — within state boundaries or outside — as an administrative action ofIsraeli officials. In other words, the Israeli soldier carries with him in his backpack,wherever he goes, not only international lawbut also the Israeli law. Any counterterrorismaction should therefore be analyzed not onlyunder international law but also under Israeliadministrative common law. This body of lawmay include procedural rights like the right to be heard and also substantive rights likehuman dignity and liberty, as specified in the Basic Law: Human Liberty and Dignityand the Values of Israel as a Jewish andDemocratic State.

The third set of laws the Court referencesare military laws or domestic Israeli laws thatare applicable to the specific dispute. As anexample, the Court analyzes the specific provi-sions of the Israeli detention laws or the lawsissued by the military commander, in casesthat involve the administrated territories.

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rights conventions. It has not ruled that ter-ror presents a unique situation outside theforce of international law. Third, this three-step test actually reinforces human rights.In order to justify certain counterterrorismmeasures, the state must prove that the op-eration or action taken is in accordance notonly with the relevant direct law (be it deten-tion law, military order or other regulation)but also with the Israeli common law andinternational law. Legality under one set oflaws does not imply legality per se underanother set of laws.

F O R M E R D E T A I N E E S S P E A K O U T :

“The whole point of Guantánamo was to get to you psychologically.

The beatings were not nearly as bad as the psychological torture.

Bruises heal after a week, but the other stuff stays with you.”

-- Jamal al-Harith, a British captive freed from Guantánamo Bay (Daily Mail, London, p.4, March 12, 2004.)

“‘I am lucky I went there, and now I miss it. Cuba was great,’”

-- 14 year-old Asadullah, one of three Afghan adolescents released from Guantánamo in January (The Guardian, London, p.18, March 6, 2004.)

“Of course they wanted to stay there. They had human rights and good living

standards there.”

-- Fatima Tekayeva, mother of one of the seven Russians transferred from Guantánamo intoRussian custody. (The Times, London, March 3, 2004.)

“I have been badly punished 107 times.”

-- Abdul Rehman, as told to Associated Press Television News in an interview at Kabul CentralJail. He said by “badly punished” he meant his captors chained his hands and feet and beathim with a metal rod on his legs and back.

Dr. Yigal Mersel

news digest

23

Winter EventsJanuary 26: The Center on Law andSecurity (CLS) hosted a screening of RobertGreenwald’s documentary, Uncovered: TheWhole Truth About the Iraq War.

John Brady Kiesling attended the screen-ing and led a discussion afterwards. Kiesling,who is featured in film, was the first Amer-ican diplomat to quit his job because of theAdministration’s policies in Iraq.

February 20: CLS brought together expertsin Iran and Turkey for a small workshop dis-cussion on “Muslim Secularism, Democracy andthe Battle against Religious Fundamentalism.”Participants included: Shaul Bakhash,Robinson Professor of History, George MasonUniversity; Henri Barkey, Professor ofInternational Relations, Lehigh University;Stephen Holmes, Walter E. Meyer Professor ofLaw, NYU School of Law; Farhad Kazemi,Professor of Politics, NYU; Nasser Hadian-Jazy, Professor of International Relations,Tehran University visiting professor at SIPA,Columbia University; Abdol-Karim Soroush,Visiting Lecturer, Institute for TransregionalStudy, Princeton University; and Jenny White,Associate Professor, Department ofAnthropology, Boston University. The discus-sion included such topics as “Is secularism onthe defensive throughout the Islamic world?”and “What are the future political prospects ofMuslim secularism in the Middle East giventhe prominence of Islam as a rallying point foranti-American and anti-autocratic politics?”

Center on Lawand Security’sResearchAssistants

Chris Barr is a second yearlaw student at NYU. He livedand studied in Cairo prior tolaw school. His research hasfocused on the Arab mediaand the USA PATRIOT Act.

Brian McDonald is a secondyear law student at NYU. Hehas researched the domesticresponse to terrorism, includ-ing the USA PATRIOT Act,the Jose Padilla and Yaser

Hamdi cases, and the Guantánamo Baydetainees.

James Mitre is a first year lawstudent at NYU. He previ-ously worked at the SITEInstitute where he investigat-ed terrorist organizations. Hisresearch focuses on the effec-

tiveness that military, criminal, and civil lawhave on deterring terrorism.

Andy Peterson is a first yearlaw student at NYU. Hisresearch primarily concernsthe Department of HomelandSecurity and Chinese perspec-tives of the U.S. war on terror.

Yannic Yvon studied law at Geneva and ViennaUniversity. Before coming to NYU School of Law as an LL.M. Fulbright Fellow,Yannic worked on current

constitutional issues of European integration.His research for the Center focuses on transat-lantic relations and European security policy.

February 23: Dr. Yigal Mersel, SeniorLegal Assistant to President Ahoron Barak,Supreme Court of Israel, Emile Noel Fellowand Hauser Research School at NYU Schoolof Law, addressed a luncheon seminar on thetopic of “Adjudicating Counterterrorism: TheIsraeli Model.” (See page 21).

February 26: Open Forum on “The USAPATRIOT Act: Where Do We Go From Here?”This debate was moderated by Tom Gerety,Executive Director of the Brennan Center forJustice at NYU School of Law. The participantswere Alice Fisher, who served as DeputyAssistant Attorney General of the CriminalDivision in the U.S. Department of Justicefrom July 2001-2003, where she was responsi-ble for managing the Counterterrorism Section;and Stephen Schulhofer, Robert B MckayProfessor of Law at NYU School of Law andauthor of The Enemy Within: IntelligenceGathering, Law Enforcement, and Civil Libertiesin the Wake of September 11 (2002). The pro-ceedings of this event will appear in the nextissue of The NYU Review of Law & Security.

Upcoming EventsApril 27: “Putting Al Jazeera in Perspective.”Featuring Peter Bergen, CNN's terrorismanalyst and author of Holy War Inc.:Inside the Secret World of Osama Bin Laden;Yigal Carmon, President of the Middle East Media Research Institute (MEMRI);Mamoun Fandy, President of FandyAssociates and author of Saudi Arabia and the Politics of Dissent; Abderrahim Foukara,UN Correspondent, Al-Jazeera Televisionand former correspondent for the BBCWorld Service. Event takes place at 6:00 pm in Vanderbilt Hall (40 Washington SquareSouth), Room 210.

April 29: Congressional Briefing on Guan-tanamo Bay. CLS will hold this briefing inWashington, DC.

June 3-5: “Prosecuting Terrorism: The GlobalChallenge.” CLS will hold its summer confer-ence at La Pietra, NYU’s site in Florence, Italy.

Abdol-Karim Soroush

24

THE CENTER ON

LAW AND SECURITY

New York University School of Law110 West Third StreetNew York, NY 10012

Thank YouThanks go to our indefatigable

and astute staff.

EditorKaren J. Greenberg

Research AssociateAndy Peterson

Research Assistants James MitreChris Barr

Yannic YvonBrian McDonald

Editorial AssistantsElizabeth OlinerAdam Sticklor

Production AssistantKristin Henderson

C O M I N G U P I N I S S U E # 3 :

Are We Safer? Updates on Homeland Security and the USA PATRIOT ActD I D Y O U K N O W T H A T . . .• It costs the country an estimated 1 billion dollars per week

to go to Code Orange?

• New York City is at a constant state of Orange Alert?

• The cost to New York City to remain in a state of Orange Alert is

roughly 5 million dollars a week?

For updates, terrorist trials, current reading lists, upcoming

conferences, and open forum proceedings, please visit our website

at www.law.nyu.edu/centers/lawsecurity/