GUANTANAMO AND BEYOND´assets.cambridge.org/97811070/09219/frontmatter/... · 2013. 7. 29. · GUANTANAMO AND BEYOND´ The Military Commissions scheme established by President George

GUANTANAMO AND BEYOND

The Military Commissions scheme established by President George W. Bush in November2001 has garnered considerable national and international controversy. In parallel withthe detention facilities at Guantanamo Bay, Cuba, the creation of military courts hasfocused significant global attention on the use of such courts as a mechanism to processand try persons suspected of committing terrorist acts or offenses during armed conflict.This book brings together the viewpoints of leading scholars and policy makers on thetopic of exceptional courts and military commissions with a series of unique contributionssetting out the current “state of the field.” The book assesses the relationship betweensuch courts and other intersecting and overlapping legal arenas including constitutionallaw, international law, international human rights law, and international humanitarian law.By examining the comparative patterns, similarities, and disjunctions arising from the useof such courts, this book also analyzes the political and legal challenges that the creationand operation of exceptional courts produce both within democratic states and for theinternational community.

Fionnuala Nı Aolain is concurrently the Dorsey and Whitney Chair in Law at the Universityof Minnesota Law School and Professor of Law at the University of Ulster’s TransitionalJustice Institute in Belfast, Northern Ireland. Professor Nı Aolain is the recipient of numer-ous academic awards and honors, including a Fulbright scholarship, the Alon Prize, theRobert Schumann Scholarship, a European Commission award, and the Lawlor fellowship.She has published extensively in the fields of emergency powers, conflict regulation, transi-tional justice, and sex-based violence in times of war. Her book Law in Times of Crisis (2006,with Oren Gross) was awarded the American Society of International Law’s preeminentprize in 2007 – the Certificate of Merit for Preeminent Contribution to Creative Scholar-ship. She is also the author of On the Frontlines: Gender, War, and the Post-Conflict Process(2011). She was appointed to the Executive Council of the American Society of Interna-tional Law in 2010 for a three-year term. She is Chair of the Board for the InternationalWomen’s Program OSI.

Oren Gross is the Irving Younger Professor of Law and the Director of the Institutefor International Legal and Security Studies at the University of Minnesota Law School.Professor Gross has received numerous academic awards and scholarships, including aFulbright scholarship and British Academy and British Council awards. Between 1986 and1991, Professor Gross served as a senior legal advisory officer in the international lawbranch of the Israeli Defense Forces Judge Advocate General’s Corps. Professor Gross’swork has been published extensively, and his articles have appeared in leading academicjournals such as the Yale Law Journal, Yale Journal of International Law, Michigan Journalof International Law, Minnesota Law Review, and Cardozo Law Review. His book Law inTimes of Crisis (Cambridge 2006, with Fionnuala Nı Aolain) was awarded the AmericanSociety of International Law’s preeminent prize in 2007 – the Certificate of Merit forPreeminent Contribution to Creative Scholarship. In 2008 he was elected as a member ofthe American Law Institute.

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Cambridge University Press978-1-107-00921-9 - Guantánamo and Beyond: Exceptional Courts and MilitaryCommissions in Comparative PerspectiveEdited by Fionnuala Ní Aoláin and Oren GrossFrontmatterMore information

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Guantanamo and Beyond

EXCEPTIONAL COURTS ANDMILITARY COMMISSIONS INCOMPARATIVE PERSPECTIVE

Edited by

Fionnuala Nı AolainUniversity of Minnesota School of Law

Oren GrossUniversity of Minnesota School of Law






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C© Cambridge University Press 2013

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Library of Congress Cataloging in Publication dataGuantanamo and beyond : exceptional courts and military commissions in comparativeperspective / edited by Fionnuala Nı Aolain & Oren Gross.

pages cmIncludes bibliographical references and index.ISBN 978-1-107-00921-9 (hardback) – ISBN 978-1-107-40168-6 (pbk.)1. Terrorism – Prevention – Law and legislation. 2. Courts of special jurisdiction.3. Military courts. 4. Terrorism – Prevention – Law and legislation – United States.5. Military courts – United States. I. Nı Aolain, Fionnuala, 1967– II. Gross, Oren.K5256.G83 2013343ʹ.0143–dc23 2013006439

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Do Phadraig O’ hAolain

To Rina and Yehoshua Gross











Contents

Contributors page xi

Acknowledgments xxi

Introduction: Guantanamo and Beyond 1

Fionnuala Nı Aolain and Oren Gross

Part I. Military Commissions and Exceptional Courts inthe United States

1 The Development of an Exceptional Court: The History ofthe American Military Commission 37

David Glazier

2 Military Commissions in Historical Perspective: Lessonsfrom the United States – Dakota War Trials 55

Carol L. Chomsky

3 Contemporary Law of War and Military Commissions 73

Gary D. Solis

4 Military Commissions and the Paradigm of Prevention 95

David Cole

5 Prevention, Detention, and Extraordinariness 117

Fiona de Londras

vii






viii CONTENTS

6 In Defense of Federal Criminal Courts for Terrorism Casesin the United States 137

Gabor Rona and Raha Wala

7 Exceptional Courts and the Structure of American MilitaryJustice 163

Stephen I. Vladeck

8 Exceptional Courts in Counterterrorism: Lessons from theForeign Intelligence Surveillance Act (FISA) 181

William C. Banks

Part II. Exceptional Courts and Military Commissions Elsewhere

9 The Law Working Itself Pure? The Canadian Experiencewith Exceptional Courts and Guantanamo 201

Kent Roach

10 Vicious and Virtuous Cycles in Prosecuting Terrorism:The Diplock Court Experience 225

John Jackson

11 Terrorism Prosecution in the United Kingdom: Lessons inthe Manipulation of Criminalization and Due Process 245

Clive Walker

12 Trying Terrorists: The Israeli Perspective 267

Emanuel Gross

13 Exceptional or Not? An Examination of India’s SpecialCourts in the National Security Context 283

Jayanth K. Krishnan and Viplav Sharma

Part III. International Law, Exceptional Courts, andMilitary Commissions

14 The Right to a Fair Trial in an Extraordinary Court 305

David S. Weissbrodt and Joseph C. Hansen






CONTENTS ix

15 Approaches and Responses of the UN Human RightsMechanisms to Exceptional Courts and MilitaryCommissions 321

Alex Conte

16 Exceptional Courts and the European Convention onHuman Rights 341

Steven Greer

17 The Legitimacy Deficit of Exceptional InternationalCriminal Jurisdiction 361

Yuval Shany

Index 379











Contributors

William C. Banks is recognized internationally as an expert on consti-

tutional and national security law and counterterrorism. He is Board of

Advisers Distinguished Professor at Syracuse University College of Law

and Director of the Institute for National Security & Counterterrorism.

Since 1987, when the Federation of American Scientists asked him to pro-

vide a legal perspective on first use of nuclear weapons, Banks has helped

set the parameters for the relatively new field of national security law.

Working with Steven Dycus, Arthur Berney, and Peter Raven-Hansen,

Banks wrote the leading text in the field. National Security Law was first

published in 1990 and is now in its fifth edition. Banks is also the author

of numerous other books, book chapters, and articles including Constitu-

tional Law: Structure and Rights in Our Federal System, Fourth Edition;

“Troops Defending the Homeland: The Posse Comitatus Act and the

Legal Environment for a Military Role in Domestic Counter Terrorism”;

and “Targeted Killing and Assassination: The U.S. Legal Framework.”

Carol L. Chomsky is a Professor of Law at the University of Minnesota

Law School. Her scholarly work has focused on the history of women

lawyers, American Indian legal history, and late-nineteenth-century

American legal history. She has coauthored an innovative contracts case-

book. She is a long-time board member of the Society of American

Law Teachers (SALT) and served as co-president from 2000 to 2002.

xi






xii CONTRIBUTORS

She is past president of Minnesota Women Lawyers and is a member of

the American Law Institute. Professor Chomsky served as Coordinator

for the University of Minnesota’s Early Career Teaching Program: Pur-

suing Excellence in Multicultural Education from 1999 to 2004 and as

Co-Coordinator of the University’s Multicultural Fellows Program from

2003 to 2008.

David Cole is a Professor of Law at Georgetown University Law Center.

He is also a volunteer attorney for the Center for Constitutional Rights,

the Legal Affairs Correspondent for The Nation, a regular contributor to

the New York Review of Books, and a commentator on National Public

Radio’s “All Things Considered.” He has published widely in law jour-

nals and the popular press, including the Yale Law Journal, California

Law Review, Stanford Law Review, New York Times, Washington Post,

Wall Street Journal, and Los Angeles Times. He is the author of six books

including Less Safe, Less Free: Why America Is Losing the War on Terror

(2007), which won the Palmer Civil Liberties Prize for best book on

national security and civil liberties; Enemy Aliens: Double Standards and

Constitutional Freedoms in the War on Terrorism (2003), which received

the American Book Award in 2004; and No Equal Justice: Race and Class

in the American Criminal Justice System (1999), which was named Best

Non-Fiction Book of 1999 by the Boston Book Review and best book

on an issue of national policy in 1999 by the American Political Science

Association. His most recent book is The Torture Memos: Rationalizing

the Unthinkable (2009). Professor Cole has litigated many significant con-

stitutional cases in the Supreme Court, including, most recently, Holder

v. Humanitarian Law Project. Professor Cole has received numerous

awards for his human rights work, including from the Society of American

Law Teachers, the National Lawyers Guild, the ACLU of Southern

California, the ABA Section on Individual Rights and Responsibilities,

and the American-Arab Anti-Discrimination Committee.

Alex Conte is the Director of the International Commission of Jurists’

International Law & Protection Programmes and an Adjunct Professor






CONTRIBUTORS xiii

at the Geneva Academy of International Humanitarian Law and Human

Rights. Dr. Conte is a New Zealand–trained lawyer. He was a criminal

law barrister for almost ten years, following which he entered academia

as a professor of international law. Dr. Conte has acted as a consultant

to the United Nations and the Organization for Security and Cooper-

ation in Europe. He has led and participated in the training of judges,

diplomats, practitioners, trial observers, and university undergraduate

and postgraduate students and has been a key-note speaker at a number

of conferences throughout the world. He holds undergraduate, masters,

and PhD degrees in law and was the 2004 New Zealand Law Foundation

International Research Fellow. His recent publications include the book

Human Rights in the Prevention and Punishment of Terrorism (2010).

Fiona de Londras is a Professor of Law at Durham Law School and

Co-Director of the Durham Human Rights Centre. Previously, she was

a faculty member at the University College of Dublin School of Law.

Widely published in the area of counterterrorism, human rights, and

comparative constitutional law, her research is broadly concerned with

mechanisms for maintaining constitutionalism – and particularly respect

for rights – at times of strain. Professor de Londras is coeditor of the

Irish Yearbook of International Law and an editor of Legal Studies, the

journal of the Society of Legal Scholars of the UK and Ireland. Her latest

book, Detention in the War on Terror: Can Human Rights Fight Back?,

was published by Cambridge University Press in 2011. She is a Visiting

Professorial Fellow of the University of New South Wales in Sydney.

David Glazier is a Professor of Law at Loyola Law School. Prior to joining

Loyola Law School, he was a lecturer at the University of Virginia School

of Law and a Research Fellow at the Center for National Security Law,

where he conducted research on national security, military justice, and the

law of war. He also served as a pro bono consultant to Human Rights First.

Before attending law school, Professor Glazier served twenty-one years

as a U.S. Navy surface warfare officer. In that capacity, he commanded the

USS George Philip, served as the Seventh Fleet staff officer responsible






xiv CONTRIBUTORS

for the U.S. Navy–Japan relationship, the Pacific Fleet officer responsible

for the U.S. Navy–PRC relationship, and participated in UN sanctions

enforcement against Yugoslavia and Haiti.

Steven Greer is Professor of Human Rights at the University of Bristol

Law School and academician at the United Kingdom’s Academy of Social

Sciences. He has taught at several universities in the UK – and in Ger-

many, France, and Australia – and acted as consultant/advisor to various

organizations, including the Council of Europe and others in Northern

Ireland, Palestine, and Nepal. He was a Nuffield Foundation Visiting

Research Fellow at the Onati International Institute for the Sociology of

Law (Spain) and a British Academy Research Fellow at the University

of Bristol. He has published widely, particularly in the fields of crimi-

nal justice, human rights, and law and terrorism. Two of his books have

been short-listed for book prizes, and some of his published and other

work has been translated into half a dozen languages. Current research

projects include a book about human rights in the Council of Europe

and the European Union (coauthored by Professor Andrew Williams,

University of Warwick).

Emanuel Gross is a Professor of Law at the University of Haifa spe-

cializing in military law, law and morality, evidence, criminal procedure,

criminal law, and law and terrorism. He is a member of the editorial

board of Ius Gentium and served as a Deputy District Military Attorney,

a Deputy Chief Judge, and a Chief Judge in the Israel Defense Force. His

books include The Struggle of Democracy against Terrorism: The Suicide

Bombers – Do We Have Any Legal Answers for this Phenomenon? (2009);

The Rule of Law and Terrorism (2004); The Crown Witness (1989); and

The Struggling of Democracy against Terrorism: The Legal and Moral

Aspects (forthcoming).

Oren Gross is the Irving Younger Professor of Law and the Director of

the Institute of International Legal & Security Studies at the University

of Minnesota Law School. He has taught and held visiting positions at






CONTRIBUTORS xv

Harvard Law School, Princeton University, the Institute for Advanced

Studies at the Hebrew University of Jerusalem, Benjamin N. Cardozo

School of Law, the Max Planck Institute for International Law and Com-

parative Public Law (Heidelberg, Germany), the Transitional Justice

Institute (Belfast, Northern Ireland), Queen’s University (Belfast, North-

ern Ireland), and the University of Santiago de Compostela (Spain). He

has received numerous academic awards and scholarships, including a

Fulbright scholarship and British Academy and British Council awards.

Professor Gross’s work has been published extensively. His articles have

appeared in leading academic journals (including the Yale Law Journal

and Yale Journal of International Law) and his book, Law in Times of

Crisis: Emergency Powers in Theory and Practice (2006), was awarded

the prestigious Certificate of Merit for Preeminent Contribution to Cre-

ative Scholarship by the American Society of International Law in 2007.

In 2008 he was elected as a member of the American Law Institute.

Joseph C. Hansen is an associate at the law firm of Gibson, Dunn &

Crutcher LLP. He graduated summa cum laude from the University of

Minnesota Law School, where he studied a concentration in International

Human Rights. He clerked on the U.S. Court of Appeals for the Third

Circuit for the Honorable Ruggero J. Aldisert. He has published several

articles on international humanitarian law and is the Vice Chair of the

ABA International Refugee Law Committee.

John Jackson is presently Professor of Comparative Criminal Law &

Procedure at the School of Law, University of Nottingham. He was

Dean and Professor of Criminal Law of the School of Law, Univer-

sity College Dublin, from 2008 to 2011, and Professor of Public Law at

Queen’s University Belfast from 1995 to 2008. From 1998 to 2000 he

was an independent assessor on the Northern Ireland Criminal Justice

Review, established under the Belfast Agreement, and he is a Parole and

Sentence Review Commissioner in Northern Ireland. His books include

Judge without Jury: Diplock Courts in the Adversary System (1995) (with

Sean Doran); The Judicial Role in Criminal Proceedings (2000) (coedited






xvi CONTRIBUTORS

with Sean Doran); Standards for Prosecutors: An Analysis of the United

Kingdom National Prosecuting Agencies (2006) (with Barry Hancock);

Crime, Evidence and Procedure in a Comparative and International Con-

text: Essays in Honour of M R Damaska (2008) (coedited with Maximo

Langer and Peter Tillers); and, most recently, The Internationalisation of

Criminal Evidence: Beyond the Common Law and Civil Law Traditions

(2012). He is Book Review Editor of the Criminal Law Review, a member

of the UK Arts and Humanities Research Council Peer Review College,

and on the editorial board of the International Journal of Evidence &

Proof and The Irish Jurist.

Jayanth K. Krishnan is the Charles L. Whistler Faculty Fellow and Pro-

fessor of Law at the Indiana University Maurer School of Law. He

teaches courses in property, comparative law, and immigration. In 2012

he received the Indiana University Trustees’ Teaching Award. Professor

Krishnan’s academic research focuses on the legal profession, the behav-

ior of lawyers, law and globalization, and legal education, with a special

emphasis on how these areas intersect in India. He has written extensively

on these subjects, and his work has appeared in both highly reputed law

reviews and peer-reviewed journals. Professor Krishnan serves as the

head of the India Initiative at Indiana Law’s Center on the Global Legal

Profession. He also serves as the Law School’s representative to the

O. P. Jindal Global University (in Haryana, India) and is codirector of

the Law School’s Center for Law, Society, and Culture.

Fionnuala Nı Aolain is concurrently the Dorsey and Whitney Chair in

Law at the University of Minnesota Law School and Professor of Law at

the University of Ulster’s Transitional Justice Institute in Belfast, North-

ern Ireland. Professor Nı Aolain is the recipient of numerous academic

awards and honors including a Fulbright scholarship, the Alon Prize,

the Robert Schumann Scholarship, a European Commission award, and

the Lawlor fellowship. She has published extensively in the fields of

emergency powers, conflict regulation, transitional justice, and sex-based

violence in times of war. Her book Law in Times of Crisis (2006) was






CONTRIBUTORS xvii

awarded the American Society of International Law’s preeminent prize

in 2007 – the Certificate of Merit for Preeminent Contribution to Creative

Scholarship. She is the author of On the Frontlines: Gender, War, and the

Post Conflict Process (2011). She was appointed to the Executive Council

of the American Society of International law in 2010 for a three-year

term and is Chair of the Board for the International Women’s Program

of the OSI.

Kent Roach is a Professor of Law and Prichard-Wilson Chair of Law and

Public Policy at the University of Toronto Faculty of Law, with cross-

appointments in criminology and political science. Professor Roach has

been Editor in Chief of the Criminal Law Quarterly since 1998. In 2002 he

was elected a Fellow of the Royal Society of Canada. Professor Roach’s

books include Constitutional Remedies in Canada (winner of the 1997

Owen Prize for best law book); Due Process and Victims’ Rights: The

New Law and Politics of Criminal Justice (short-listed for the 1999 Don-

ner Prize for best public policy book); The Supreme Court on Trial: Judi-

cial Activism or Democratic Dialogue (short-listed for the 2001 Donner

Prize); September 11: Consequences for Canada (named one of the five

most significant books of 2003 by the Literary Review of Canada); (with

Robert J. Sharpe) Brian Dickson: A Judge’s Journey (winner of the 2004

J. W. Dafoe Prize for best contribution to the understanding of Canada);

and The 9/11 Effect: Comparative Counter-Terrorism (winner of the 2012

Mundell Medal).

Gabor Rona the International Legal Director of Human Rights First,

advises Human Rights First programs on questions of international law

and coordinates international human rights litigation. He also represents

Human Rights First with governments and intergovernmental and non-

governmental organizations and the media and the public on matters

of international human rights and international humanitarian law (the

law of armed conflict). Before joining Human Rights First, Gabor was

a Legal Advisor in the Legal Division of the International Committee

of the Red Cross (ICRC) in Geneva. At the ICRC he focused on the






xviii CONTRIBUTORS

application of international humanitarian and human rights law in the

context of counterterrorism policies and practices. He represented the

ICRC in intergovernmental, nongovernmental, academic, and public

forums, and his articles on the topic have appeared in the Financial

Times, the Fletcher Forum on World Affairs, and the Chicago Journal of

International Law.

Yuval Shany is Dean and Hersch Lauterpacht Chair in International

Law at the Law Faculty of the Hebrew University of Jerusalem. He also

serves as a board member in the International Law Forum at the Hebrew

University, a director in the Project on International Courts and Tri-

bunals, and a Senior Research Fellow at the Israel Democracy Institute.

Professor Shany has published a number of books and articles on interna-

tional courts and arbitration tribunals and other international law issues

such as international human rights and international humanitarian law.

He is the recipient of the 2004 American Society of International Law

book award (creative legal scholarship) and a 2008 recipient of a Euro-

pean Research Council grant awarded to pioneering research leaders.

He currently coordinates a research group studying the effectiveness of

international adjudication and is a member of a study group looking into

the relationship between substantive national and international criminal

law. He was appointed to the United Nations Human Rights Committee

in 2012.

Viplav Sharma is a graduate of the National Academy of Legal Studies

and Research University, Hyderabad. He clerked on the Supreme Court

of India for Justice Arijit Pasayat and worked at the law firm of Amar-

chand Mangaldas. Since 2010, he has been practicing as an advocate in

the Supreme Court of India.

Gary D. Solis is an Adjunct Professor of Law who teaches the laws of war

at the Georgetown University Law Center and is an expert on the laws

of war. He taught on the London School of Economics’s law faculty for

three years before joining the Department of Law at the United States

Military Academy. For six years he headed West Point’s law of war






CONTRIBUTORS xix

program, receiving Phi Kappa Phi’s distinguished teaching award and, in

2005, the Apgar Award as the Military Academy’s outstanding instructor.

He retired from West Point in 2006. He is on the teaching faculty of

the International Institute of Humanitarian Law in San Remo, Italy.

Published monographs include Marines and Military Law in Vietnam;

Son Thang: An American War Crime; and The Law of Armed Conflict:

International Humanitarian Law in War.

Stephen I. Vladeck is a Professor of Law and the Associate Dean for

Scholarship at American University Washington College of Law. His

teaching and research focus on federal jurisdiction, constitutional law,

national security law, and international criminal law. A nationally recog-

nized expert on the role of the federal courts in the war on terrorism, he

was part of the legal team that successfully challenged the Bush adminis-

tration’s use of military tribunals at Guantanamo Bay, Cuba, in Hamdan

v. Rumsfeld, and has coauthored amicus briefs in a host of other major

lawsuits, many of which have challenged the U.S. government’s surveil-

lance and detention of terrorism suspects. Professor Vladeck, who is a

coeditor of Aspen Publishers’s leading national security law casebook,

has drafted reports on related topics for a wide range of organizations,

including the First Amendment Center, the Constitution Project, and the

American Bar Association’s Standing Committee on Law and National

Security. He is a senior editor of the peer-reviewed Journal of National

Security Law and Policy and a senior contributor to the Lawfare blog.

Raha Wala is an Advocacy Counsel in the Law and Security Program at

Human Rights First, where he advocates for U.S. counterterrorism and

national security policies that are consistent with human rights norms. He

graduated with honors from Georgetown University Law School, where

he served as managing editor of the Georgetown Journal of International

Law, co-president of Georgetown Law’s Amnesty International chapter,

and student co-director of the Iraqi Refugee Resettlement Fact-Finding

Project. While at Georgetown Law, Mr. Raha undertook internships at

Human Rights First, the Open Society Policy Center, the Human Rights

Law Foundation, and the Institute for International Law and Human






xx CONTRIBUTORS

Rights. Raha received his JD from Georgetown University Law School

(2010) and his BBA in Finance and Political Science from the University

of Wisconsin-Madison (2005).

Clive Walker is Professor of Criminal Justice Studies at the School of

Law, University of Leeds. He was Director of the Centre for Criminal

Justice Studies from 1987 to 2000 and Head of the Law School from 2000

to 2005 and again in 2010. He has researched and written extensively

on terrorism issues. His books include The Prevention of Terrorism in

British Law (1992), Political Violence and the Law in Ireland (1989), and

The Anti-Terrorism Legislation (2009). His research has involved inter-

national publications and visiting professorships, and he is a regular con-

tributor to governmental and Parliamentary inquiries. Arising from his

appointment as a special adviser to a UK Parliamentary select commit-

tee is his book The Civil Contingencies Act 2004: Risk, Resilience and the

Law in the United Kingdom (2006). His latest research, supported by the

Arts & Humanities Research Council, is a comprehensive commentary,

Terrorism and the Law (2011).

David S. Weissbrodt is a distinguished and widely published scholar of

international human rights law. In 2005, he was appointed as the first

Regents Professor at the University of Minnesota Law School. Since 1998

he has also been the Fredrikson and Byron Professor of Law. He was the

Briggs and Morgan Professor of Law 1989–97 and the Julius E. Davis

Professor of Law 1985–86. He established the University of Minnesota

Human Rights Center and helped establish the University of Minnesota

Human Rights Library online. He has represented and served as an officer

or board member of the Advocates for Human Rights, Amnesty Inter-

national, the Center for Victims of Torture, the International Human

Rights Internship Program, Readers International, and the International

League for Human Rights.






Acknowledgments

The completion of this book is the result of significant support from

a number of institutions and individuals. They include the University

of Minnesota Law School, which through the funding provided by the

Robina Foundation generously supported the conference entitled Excep-

tional Courts and Military Commissions: Comparative and Policy Per-

spectives. This gathering enabled the editors and many of the scholars

contributing to this volume to meet in Minneapolis in October 2009.

The conference facilitated a rare discussion between legal scholars from

numerous legal subfields on exceptional courts and military commis-

sions and allowed fruitful analysis to take place. We both remain deeply

indebted to Dean David Wippman for his ongoing support for this and

other research projects we undertake individually and collectively. Pro-

fessor Nı Aolain would like to thank Dean Paul Carmichael and col-

leagues at the University of Ulster’s Transitional Justice Institute in

Belfast, Northern Ireland. Her interest in exceptional courts was sparked

by long hours as a doctoral student spent observing Diplock Courts at

the Antrim Road Courthouse on the northwest side of the city of Belfast,

and lengthy hours of research observation spent in the Special Criminal

Court in Dublin, Ireland. Portions of the introduction were presented at

various conferences and roundtables including the LAPA reunion con-

ference at Princeton University in October 2010, the National Security

Forum at William Mitchell Law School in March 2009, and a Colloquium

on Exceptional Courts at the University of Minnesota Law School in

xxi






xxii ACKNOWLEDGMENTS

March 2009. We undertook the final editing of this book at Harvard Law

School in the autumn of 2012, and we appreciate the time in Cambridge

to conclude the task.

Our collective debts are owed to the University of Minnesota Law

School library, and in particular to Mary Rumsey, the Law School’s for-

eign, comparative, and international law librarian. Mary has an uncanny

capacity to locate the most obscure sources and give advice on research

tangles big and small. John Berger has been an ever-patient editor and

friend, and we thank him for his continued enthusiasm for the projects

we undertake and his ongoing gentle prodding to keep us to our dead-

lines. A number of research assistants worked with us to check footnotes,

sources, and keep us up to date on the various changes and adaptions to

the military commission system in the United States and elsewhere. We

thank Peter Anderson, Emily Hutchinson, Laura Matson, and Kristen

Rau. Finally, we express gratitude to our three children – Aodhtan, Noa,

and Malachi – for their patience in accommodating two parents complet-

ing a collective project such as this.






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