ANALYSIS OF POLICIES FOR PROSECUTION OF UNLAWFUL ENEMY COMBATANTS
Kevin Allen Foreman
B.A., California State University, Sacramento, 2008
THESIS
Submitted in partial satisfaction of
the requirements for the degree of
MASTER OF SCIENCE
in
CRIMINAL JUSTICE
at
CALIFORNIA STATE UNIVERSITY, SACRAMENTO
SPRING
2010
ANALYSIS OF POLICIES FOR PROSECUTION OF UNLAWFUL ENEMY COMBATANTS
A Thesis
by
Kevin Allen Foreman
Approved by:
__________________________________, Committee Chair
David H. Swim, D.P.A.
__________________________________, Second Reader
Timothy A. Capron, Ph.D.
____________________________
Date
ii
Student: Kevin Allen Foreman
I certify that this student has met the requirements for format contained in the University format
manual, and that this thesis is suitable for shelving in the Library and credit is to be awarded for
the thesis.
__________________________, Graduate Coordinator
Yvette Farmer, Ph.D.
Division of Criminal Justice
iii
___________________
Date
Abstract
of
ANALYSIS OF POLICIES FOR PROSECUTION OF UNLAWFUL ENEMY COMBATANTS
by
Kevin Allen Foreman
Following the terrorist attacks on September 11, 2001, President George W. Bush
responded by declaring a global war on terrorism (GWOT). As part of the GWOT, the
United States launched two military invasions against Afghanistan and Iraq, which have
inevitably led to the capture of terrorists. President George W. Bush selected to have
these terrorists prosecuted in military tribunals rather than federal criminal courts. The
selection of military tribunals has been controversial, and recently been denounced by
newly elected President Barrack Obama. President Obama and his administration have
publicly expressed the desire to end military tribunals and instead use federal criminal
courts.
The purpose of this study is to use evaluative criteria that analyze the
consequences for the transition from military tribunals to federal criminal courts for
terrorist prosecution. Both judicial systems will be evaluated for pros and cons, and a
recommendation will be made for which system the United States should use to prosecute
iv
GWOT prisoners. It is critical for the United States to select the most sensible solution
for the prosecution of terrorists if it is to be successful in the GWOT.
_______________________, Committee Chair
David H. Swim, D.P.A.
_______________________
Date
v
ACKNOWLEDGMENTS
It is necessary that I recognize Professors David Swim, Timothy Capron, and Yvette
Farmer for their guidance in the completion of this thesis. Each has had a different
impact and helped in such special ways.
Most importantly, I must thank my amazing parents Ben and Julie. They have always
given more than was required. And because of their love and support, I have been able to
reach a major milestone in my life.
vi
TABLE OF CONTENTS
Page
Acknowledgments.................................................................................................................... vi
List of Tables ............................................................................................................................ x
Chapter
1.
INTRODUCTION ............................................................................................................. 1
Statement of the Problem .............................................................................................. 1
Need for the Study ........................................................................................................ 2
2.
REVIEW OF LITERATURE ........................................................................................... 4
Introduction.................................................................................................................. 4
Bush Doctrine .............................................................................................................. 4
Geneva Convention....................................................................................................... 6
War Crimes Act .......................................................................................................... 12
President Bush and Tribunals ..................................................................................... 13
Ex Parte Quirin ........................................................................................................... 13
In Re Territo................................................................................................................ 15
Johnson v. Eisentrager ................................................................................................ 15
International Tribunals ................................................................................................ 16
Nuremberg Trials ........................................................................................................ 17
Tokyo Trials................................................................................................................ 17
Adolf Eichmann Trial ................................................................................................. 18
Slobodan Milosevic .................................................................................................... 19
Rendition..................................................................................................................... 20
vii
Military Commissions Act .......................................................................................... 23
Terrorism and Asymmetrical Warfare ........................................................................ 26
Obama’s Proposals ..................................................................................................... 29
Khalid Sheik Mohammed ........................................................................................... 32
Summary ..................................................................................................................... 33
3.
METHODOLOGY........................................................................................................... 34
4.
ANALYSIS OF DATA ................................................................................................... 40
Trial Costs ................................................................................................................... 40
Applicability of the Bill of Rights .............................................................................. 42
Media and Trials ......................................................................................................... 48
International Opinion .................................................................................................. 50
Detainees and Proximity ............................................................................................. 50
Recidivism .................................................................................................................. 51
Results......................................................................................................................... 52
Trial Costs ................................................................................................................... 53
Applicability of the Bill of Rights .............................................................................. 53
Media and Trials ......................................................................................................... 55
International Opinion .................................................................................................. 56
Detainees and Proximity ............................................................................................. 57
Recidivism .................................................................................................................. 57
Policy Recommendation ............................................................................................. 59
Proposal of an Alternative Policy ............................................................................... 60
Policy Monitoring ....................................................................................................... 63
Discussion ................................................................................................................... 65
viii
5.
CONCLUSION ................................................................................................................ 67
Overview ..................................................................................................................... 67
Review of Findings ..................................................................................................... 68
Implications for Practice ............................................................................................. 71
Research Implications ................................................................................................. 71
References ................................................................................................................................ 72
ix
LIST OF TABLES
Page
1.
Table 1: Sample Matrix………………………….…………………………….... 37
2.
Table 2: Changes in Spending Subject to Appropriation.………………………...... 41
3.
Table 3: Outcome Matrix……………………….………………………………...59
x
1
Chapter 1
INTRODUCTION
According to the International Committee of the Red Cross (2010), the United
States of America signed the Geneva Convention in 1949 to abide by international law
concerning war and captured enemies of war. Consequently, anytime the United States is
engaged in military operations it is legally required to adhere to the international signing
of the Geneva Convention. On September 11, 2001 (9/11), the United States was
attacked by 19 members of Al Qaeda who hijacked commercial airliners and flew them
into pre-selected targets causing the death of innocent civilians, damage upon the
economy, fear, and the realization that the US was at war with Al Qaeda (Yungher,
2007). The attackers who committed these acts were not abiding by international law and
were, therefore, engaging in asymmetrical warfare.
Statement of the Problem
Following the attacks, the United States Congress passed H.J.RES.64 and
S.J.RES.23 to authorize the use of force against those responsible for the destruction on
September 11 (Washington Post, 2010). The resolutions aimed to prevent future attacks
against the United States, by entering into conflict with Al Qaeda and other organizations
that were allied with Al Qaeda or capable of committing similar acts of violence. This
authorization led to the military offensive known as the Global War on Terror (GWOT).
As a result of the GWOT, individuals have been detained on suspicion of terrorism and
held as unlawful enemy combatants. Following the apprehension of suspected terrorists,
2
controversy has surfaced about how the United States government should prosecute these
detainees.
Need for the study
War as a means for conflict resolution is an extension of public policy
(Clausewitz, 1873). The rules of war and the Geneva Convention were created to
regulate conflict between symmetrical powers (Pfanner, 2005). It is necessary to study
this topic because terrorism is asymmetrical warfare and criminal behavior that violates
the rules of war. In response to this asymmetrical criminal behavior, the United States
began killing and capturing terrorists. The Bush Administration had decided that military
tribunals should be the judicial system used to prosecute captured terrorists. After
succeeding President Bush, Barrack Obama declared he would end the use of tribunals
and have suspected terrorists tried in federal criminal courts (The Sun, 2009). The debate
about how the United States should prosecute prisoners captured in the GWOT is focused
on whether these prisoners deserve the full protection of the Bill of Rights, or if their
rights should be limited.
This thesis will examine the application of constitutional and international law to
foreign prisoners of war and criminals. Historical actions pertaining to criminal
prosecution of war crimes, war crimes acts, Supreme Court decisions, and international
treaties will also be included. In addition, terrorism and asymmetric warfare, as well as
the criminal behavior of international drug cartels and gangs will be discussed. This
research will be used to conduct an analysis of the differences between using military
tribunals and federal criminal courts for the prosecution of these non-traditional enemies.
3
This should answer what is the impact of transitioning from military tribunals to federal
criminal courts for the prosecution of unlawful enemy combatants suspected of
terrorism?
4
Chapter 2
REVIEW OF LITERATURE
Introduction
In order to better understand the impact of switching from military tribunals to
federal criminal court for the prosecution of suspected terrorists, it becomes necessary to
expand knowledge on the United States policies for unlawful enemy combatant
prosecutions. This includes US law, the history of tribunals, the nature of terrorism and
their strategies. In doing so, this will help to explain why President Bush chose to use
military tribunals instead of federal courts for terrorism prosecution. It will also expand
understanding of the differences in philosophies between Presidents Bush and Obama
concerning terrorists’ trials. In addition to terrorism, other illegal group activity will be
discussed. By doing so, it will shed light on the similarities between terror groups and
other illegal criminal groups.
Bush Doctrine
After the World Trade Center and Pentagon attacks on September 11, 2001, it
became quite clear that the United States had a new, unprecedented threat to confront.
The question arising from this threat was how the US should respond to extreme
terrorism. Was terrorism to be viewed through the lens of a military and war problem, or
a criminal justice and policing problem? In a nationally televised address to a joint house
of congress, President Bush outlined what the United States’ plan of action against
terrorist threats would be. The President determined that the military would take the
forefront combating terrorism abroad, and law enforcement would be used to prevent
5
terrorism from occurring on American soil (Whitehouse Archives, 2006). Following
September 11, the philosophy of the United States changed. This was best exemplified as
part of President Bush’s speech, “We will pursue nations that provide aid or safe haven to
terrorism. Every nation, in every region, now has a decision to make. Either you are
with us, or you are with the terrorists. From this day forward, any nation that continues
to harbor or support terrorism will be regarded by the United States as a hostile regime”
(PBS, 2003). This quote represents what is now known as the Bush Doctrine.
The Bush Doctrine was never explicitly defined by George W. Bush, but based on
statements and actions of the administration most experts have a shared belief in how it
changed United States policy (Jervis, 2003). Robert Jervis (2003) explains that the Bush
Doctrine is based on four basic principles. First is the belief that each nation determines
its foreign policy. Second, September 11, demonstrated that the United States needs to
take a more, active role into world policies and affairs. Third, is a willingness for the
United States to act unilaterally if necessary. And finally, a belief that peace and stability
require the United States to assert itself directly into world politics. In essence, the Bush
Doctrine is the action that the President has determined to be within his authority to use
whatever means necessary to protect the United States and its interests, be it foreign and
domestic.
In keeping with this doctrine, the United States began protecting its interests.
Shortly after 9/11, President Bush determined that Afghanistan and Iraq were dangerous
regimes that threatened America, and both were selected for military invasion. After
these invasions, Al-Qaeda and Taliban members were captured and held on charges of
6
aiding or engaging in terrorism, instead of just being removed from the battlefield like
traditional prisoners of war (James, 2009). President Bush wanted these individuals
brought to justice. This left him with a decision; either suspected terrorists could be
brought into the United States to face trial in federal criminal court or they could be held
as non-traditional combatants and face a military tribunal. An attorney in the Justice
Department, John Yoo, and his team led the task to provide legal justification for the
capturing, holding, and trial of terrorists (Krik, 2003).
Geneva Convention
Since August 12, 1949, the United States and all other sovereign nations have
been required to follow international laws of war and armed conflict as determined by
Geneva Conventions (I-IV) (International Committee of the Red Cross, 2010). This
includes all declared wars, as well as armed conflicts without a formal declaration.
Effectively the Geneva Convention builds on the customary laws of war and holds armed
forces accountable to the rules and conduct by which they must abide during armed
conflict. These rules protect innocent civilians as well, but the main focus is to provide
humane treatment to those captured. In doing so, the conventions require all nations to
wage war symmetrically (Pfanner, 2005). Symmetrical warfare does not mean
symmetrical military capability; rather symmetry in warfare holds all sides to equal rules
and ethical standards for legal actions during war. After seeing the massive devastation
in the early 20th century, leaders hoped that the Geneva Conventions would limit human
suffering during hostilities.
7
There have been four different Geneva Conventions that have been ratified by the
international community concerning war conduct (International Committee of the Red
Cross, 2010). Convention (III) established the legality of prisoners of war, and
Convention (IV) established protections for combatants who lay down their arms during
armed conflict and civilians (International Red Cross, 2010). According to the Lillian
Goldman Law Library (2008), the Geneva Convention (III) Relative to the Treatment of
Prisoners of War, determined who is a lawful combatant or an unlawful combatant, and
established rights for combatants. Convention (III) also significantly expanded prisoner
of war treatment and redefined the conditions and places of captivity. A critical section
of Convention (III) is article IV, which created the criteria for prisoner of war status. To
be eligible for prisoner of war treatment, combatants must meet all four criteria found in
Article IV.
Article IV states that all military organizations must be held to the following:
(a) Personnel must be commanded by a person responsible for his or her
subordinates.
(b) Personnel must wear a fixed distinctive sign or symbol recognizable from a
distance.
(c) Personnel must carry arms openly [and]
(d) Operations must be conducted in accordance with the laws and customs of war.
Any combatant who cannot meet all four of these criteria is deemed to be unlawful.
Combatants that fail to meet all four criteria are not protected by the Geneva Convention
and, therefore, are not entitled to prisoner of war rights. Combatants who meet the
8
criteria for a lawful combatant are entitled to Part Two and Three of the Third Geneva
Convention.
Geneva Convention (III) Part Two: General Protection of Prisoners of War
Article 13: Prisoners of war must at all times be treated humanely, and medical and
scientific experiments cannot be conducted on a prisoner of war unless it is in the best
interest of the prisoner’s health. Prisoners must at all times be protected for especially
against acts of mutilation, intimidation, and public curiosity.
Article 14: Prisoners of war are entitled in all circumstances to respect for their persons
and honor. Women are also entitled to the same ethical treatment as men, respecting
their gender.
Article 15: Prisoners of war are entitled to medical services at the expense of the
occupying power.
Article 16: All prisoners of war shall be treated alike by the detaining power, and
distinctions of prisoners based on race, nationality, religious belief, political opinions, or
any other distinction based upon similar criteria are prohibited.
Geneva Convention (III) Part Three: Captivity
Article 18: All personal materials except arms, military documents, and military
equipment shall remain with the prisoner. Prisoners are to have
documentation/identification, protective equipment (i.e. gas mask), and are permitted to
keep any money. Money can only be taken away by an officer, and if so, must be
accounted for with an itemized receipt. A credit must be secured for the prisoner in his
name with serial number and ranking to insure repayment.
9
Article 19/20: Prisoners of war must be evacuated safely and humanely immediately
after capture, away from combat zones.
Convention III also guarantees the prisoner the right to safe shelter and sufficient
quantities of safe food, water, and clothing.
In times of hostilities doubt may arise as to whether individuals are lawful or
unlawful. Geneva Convention (III) Article five clarifies:
Should any doubt arise as to whether persons, having committed a belligerent act
and having fallen into the hands of the enemy, belong to any of the categories
enumerated in Article 4, such persons shall enjoy the protections of the present
Convention until such time as their status has been determined by a competent
tribunal.
Michaelson and Shershow (2004) explain that the idea of doubt for Al Qaeda and Taliban
fighters can easily be misunderstood. The public, activists, and scholars may believe that
Al Qaeda and Taliban combatants should receive Geneva Convention rights; however the
United States Government does not because they are unlawful combatants. According to
the authors, it is strictly at the discretion of the United States, and the United States only
to afford those protections, if combatants are unlawful.
Assistant Attorney General, Jay S. Bybee wrote a letter to Senior U.S. Officials
explaining why the US does not share doubt about the status of Al Qaeda and Taliban
combatants and why they are afforded limited prisoner of war rights (US Department of
Justice, 2002). He stated that Al-Qaeda fails to meet Geneva Convention eligibility
because they are an international terrorist group and cannot be considered a state party.
10
As for the Taliban, they are not entitled to Geneva protections because they have not
effectively distinguished themselves from the civilian population of Afghanistan, and
have not conducted their operations in accordance with international law.
Since terrorists often target innocent civilians, it is also necessary to include the
protections for civilians that are required by the Geneva Conventions. Convention (III)
does not provide rights and protections for civilians (International Committee of the Red
Cross, 2010). This information is found in Geneva Convention (IV). The third article,
section one, under this convention protects civilians from crimes against humanity by any
combatant. If these protections are not respected by armed forces, the action is deemed
belligerent, and therefore illegal. The third article states:
Persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, color, religion or
faith, sex, birth or wealth, or any other similar criteria (International Committee of
the Red Cross, 2010).
In addition to the previously discussed protections, Geneva Conventions (IV)
Article 3 also states the following acts are prohibited against any civilian or any lawful
combatant who has laid down arms:
a) violence to life and person, murder of all kinds, mutilation, cruel treatment, and
torture;
b) taking of hostages;
11
c) outrages upon personal dignity, in particular humiliating and degrading treatment;
d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
Unlike the United States and all other nations, terrorists do not respect these rules of war.
This makes their taking up of arms illegal, and these violations can legally prevent them
from being held without full prisoner of war rights.
Even though the United States has ratified Geneva Conventions (I-IV), they have
not ratified the Geneva Protocol I of 1977. This protocol grants prisoner of war rights to
all captured combatants, lawful or unlawful (International Committee of the Red Cross,
2010). It was rejected by President Ronald Reagan on January 29, 1987, and he
explained why in a letter written to the senate (National Archives and Records
Administration, 2010). Regan stated:
…Another provision would grant combatant status to irregular forces even if they
do not satisfy the traditional requirements to distinguish themselves from the
civilian population and otherwise comply with the laws of war. This would
endanger civilians among whom terrorists and other irregulars attempt to conceal
themselves…It is unfortunate that Protocol I must be rejected. We would have
preferred to ratify such a convention, which as I said contains certain sound
elements. But we cannot allow other nations of the world, however numerous, to
impose upon us and our allies and friends an unacceptable and thoroughly
distasteful price for joining a convention drawn to advance the laws of war. In
12
fact, we must not, and need not, give recognition and protection to terrorist groups
as a price for progress in humanitarian law (National Archives and Records
Administration, 2010).
Had the United States adopted this protocol, all irregular combatants would have to be
given full protections of the conventions and be prosecuted in federal courts instead of
tribunals.
War Crimes Act
Violation of the Geneva Convention allows for the legal holding of Al Qaeda and
Taliban fighters without its provisions. However, in order to prosecute these combatants
under United States authority, they need to be in violation of United States law as well.
The War Crimes Act of 1996 provides the legal authority to hold unlawful enemy
combatants responsible for illegal acts of war against the United States (Garcia, 2009).
Prior to this Act, the United States lacked legal authority to hold criminals responsible for
acts of war that violated the Geneva Convention. Representative Walter B. Jones
proposed this Act, when he met a retired Navy pilot who had spent six years in the Hanoi
Hilton (Smith, 2006). Jones was angry that Vietnamese captors had tortured American
servicemen and violated their human rights, but they could not be brought to justice. He
also realized that there was no legality to hold war criminals accountable for similar acts
of brutality in future conflicts. To address this legal void, he proposed the War Crimes
Act of 1996, which Congress passed unanimously.
Most simply, the War Crimes Act requires all United States personnel and those
with whom they are engaged to follow all rules in the laws of war (Smith, 2006). The
13
United States laws of war are the Uniform Code of Military Justice, Geneva Conventions
and any protocols that the United States has ratified. Whether acts that violate the laws
of war are committed within or outside the United States is not of importance, such acts
are illegal in both locations (Garcia, 2009). These violations can result in sanctions of
imprisonment or death if an innocent party’s rights are violated. The War Crimes Act is
now officially known as 18 U.S.C. Section 2441 (Cornell Legal Information Institute).
Effectively this act implemented penal punishment for violation of the Geneva
Conventions.
President Bush and Tribunals
The Bush Administration presumed that Al Qaeda and Taliban members were in
violation of the Geneva Convention and could be held accountable for their crimes by the
War Crimes Act, but the question of how to most appropriately try these individuals
emerged. The Bush Administration ultimately decided that Al Qaeda and Taliban
members were war criminals and chose to have these individuals tried in military
tribunals rather than federal criminal courts. Military tribunals have a long history in the
United States. They were initially created to prosecute cases in times of war or rebellion
dating back to the Revolutionary War (James, 2009). They have since been used in the
Mexican-American War, the Civil War, Reconstruction, the Spanish-American War, and
World War II. Legal justification to reuse military tribunals for suspected terrorists was
found in three major Supreme Court rulings that legitimized the use of tribunals for war
criminals.
Ex Parte Quirin
14
In 1942 the Supreme Court issued a monumental ruling that was used as the
foundation for how the United States should prosecute unlawful enemy combatants under
the Bush Doctrine (Elsea, 2004). This case is known as Ex Parte Quirin. In 1942, eight
German-Nazi saboteurs landed on the shores of the United States in various eastern
locations (Elsea, 2004). Shortly after landing they removed their Nazi uniforms; their
intentions were to blend in as civilians in order to carry out multiple sabotage
assignments against United States war efforts. The eight were captured by the FBI, and
tried before a military tribunal. Elsea (2004) and Fisher (2002) explain why a tribunal
was chosen as the legal model:
1) Being enemies, they secretly and covertly passed in civilian clothes, through the
military defenses of the United States to commit hostile acts, violation of the laws of
war.
2) Violation of the United States’ Laws of War, Article 81 and 82, by trying to provide
intelligence to the enemy and spying.
3) Conspiring to commit these acts against the United States.
All eight members were found guilty and six were sentenced to death. Their
appeals to not be tried by tribunal were reviewed by the Supreme Court, which provided
legal interpretation of its decision. The court determined that the laws of war provide a
distinction between who is a lawful combatant and who is not a lawful combatant (Elsea,
2004; Fisher, 2002). Furthermore, they decided that those who are unlawful combatants
are subject to capture and trial and punishment by military tribunals for acts that are
deemed belligerent. Effectively the Supreme Court decision demonstrated that the
15
Constitution does not provide the writs of habeas corpus to enemies who are unlawful
combatants to the United States (Elsea, 2004; Fisher, 2002).
In Re Territo
This ruling is significant because it upheld the power to prosecute an unlawful
combatant that was an American citizen by tribunal. In the case of In Re Territo, an
American citizen had been inducted into the Italian Army against the United States and
was captured by American forces (Elsea, 2004). He was then transferred to a prisoner of
war camp and held there. He petitioned for a writ of habeas corpus based on grounds that
his American citizenship prevented him from being held as a prisoner of war. The court
found he could be detained without charge pursuant to the laws of war. Furthermore his
constitutional rights and the Geneva Convention did not protect him because he had taken
up arms against the United States in a time of war (American Center for Law & Justice,
2002; Elsea, 2004). Therefore he could be legally held as a prisoner of war because he
was determined to be a belligerent according to the Hague Convention and laws of war.
Johnson v. Eisentrager
The impact of this case is the denial for appeal to the federal court system for any
unlawful enemy combatants that have not entered into American territory. Following the
unconditional surrender of Germany in World War II, a small number of Germans passed
information to Japan about United States troop movements in China (US Courts, 1950).
This was a violation of the unconditional surrender. Twenty-one German combatants
were captured and convicted of war crimes by a military tribunal for continuing to either
order commands or carry out acts of war against the United States and its allies after the
16
unconditional surrender of German hostilities. These combatants petitioned to have their
case heard in the District Court for the District of Columbia (Elsea, 2004). The Supreme
Court declared that the German combatants did not have the writ to habeas corpus
because they were never in American Territory. Therefore, they were not entitled to
constitutional protection or access to American courts because as aliens they are not
entitled to constitutional protections. The Supreme Court declared that all unlawful
combatants captured outside of American territory do not have the right to access federal
courts if it is determined that they are to be prosecuted by military tribunal.
These are three cases in the United States where the use of military tribunals were
legally upheld by the Supreme Court. Following these rulings, it has been legally
justified to prevent unlawful combatants that violate the rules of war to be tried outside of
federal courts. It does not matter whether unlawful combatants are captured inside or
outside of the United States or are American citizens. The rulings are clear; any unlawful
combatant can be legally prosecuted by a military tribunal, and these rulings were used to
justify the prosecution of captured terrorists in the GWOT (Elsea, 2005; Elsea & Thomas,
2006). Internationally, military tribunals have also been used to prosecute war criminals.
International Tribunals
Near the closing of World War II, allied governments had determined that those
who were responsible for crimes against humanity needed to be punished (Lillian
Goldman Law Library, 2008). Widespread atrocities had been waged against innocent
populations at the hands of the Nazi Germans and the Japanese. These atrocities included
murder, extermination, enslavement, deportation, or persecutions on political, racial, or
17
religious grounds (United States Holocaust Memorial Museum, 2010). On August 8,
1945, the London Agreement was signed by the allied nations of the United States, Great
Britain, Soviet Union and France in order to hold individuals responsible for crimes
against humanity (United States Holocaust Memorial Museum, 2010). The London
Agreement paved the way for the creation of International Military Tribunals.
Nuremberg Trials
Following the end of the war in 1945, the prosecution of Nazi officials was held in
Nuremberg, Germany for reasons of value (Linder, 2000). Nuremberg was the site of
massive annual rallies that spread Nazi propaganda, including a rally that announced the
anti-Jewish Nuremberg Laws (Linder, 2000). The Nuremberg Trials were conducted by
judges and prosecutors appointed by the nations who signed the London Agreement
(Harrer & Phinney, 2006). Four counts were used for indictments: conspiracy to commit
crimes against peace, war crimes, crimes against humanity, and conspiracy to commit
crimes alleged in the other counts. The legacy of the Nuremberg International Military
Tribunal became the first time the concepts of collective guilt were used to justify
punishment, and it was the first time that organized attempts were made to apply
principles of international law (Harrer & Phinney, 2006). Thereby this tribunal
established new precedents for international justice.
Tokyo Trials
Following the model of the Nuremberg Trials, allied nations targeted major
Japanese officials for crimes against humanity (American Law and Legal Information,
2010). On January 19, 1946, Supreme Commander of the Far East, General McArthur
18
established the Military Tribunal for the Far East. Whereas officials of four Allied
nations ran the Nuremberg trials, 11 Allied Nations conducted the Far East Tribunal
(Wesserle, 1981). Similar to the symbolic value of holding the German Tribunal at
Nuremberg, the Japanese officials were tried at the war ministry in Tokyo (Time
Magazine, 1948). Three charges were used in the indictments: crimes against peace: war
crimes in a more restricted sense, e.g., violations of the laws and customs of war; and
crimes against humanity. Although many high ranking officials were brought to justice
by lengthy prison sentences or death by hanging, the overall perception of the Tokyo
Trials did not have the prestige of the Nuremberg Trials. Emperor Hirohito was never
charged for any crimes, and was unofficially pardoned (Wesserle, 1981). The tribunal
was clouded with disagreement by those conducting the trials about whether the correct
charges were pursued in order to maximize the most appropriate sentencing.
Adolf Eichmann Trial
After the closing of the Nuremberg Trials, a major Nazi official, Adolf Eichmann,
should have been prosecuted but escaped arrest and was still at large (Smart, 2009).
Eichmann was the Nazi commanding officer in charge of implementing the final solution.
His task was to oversee the systematic extermination of all Jewish descendents (Ostrow,
1994). Following German surrender, Eichmann had avoided capture and relocated to
Italy under a false identification certificate (Smart, 2009). His certificate was set to
expire two years after its issue in 1950, and in that year he left Italy for Argentina. It was
years before Israeli intelligence could determine his location and capture him (Smart,
19
2009). In 1960, an undercover operation of Israeli agents apprehended Eichmann and
brought him back to Israel for trial.
Eichmann’s trial was initially challenged because the international community
questioned whether Israel could legally try him after removing him from Argentina, and
if Israel could take sole authority for his prosecution. Prime Minister Ben Gurion
countered by declaring that Israel, as the only Jewish state, had the right to seek out
criminals guilty of offenses against the Jewish people (Time, 1960). At the end of the
trial, Adolf Eichmann was found guilty on 15 counts and sentenced to death by hanging.
After his death, his ashes were intentionally spread over the Mediterranean Sea,
symbolically leaving Eichmann no final resting place (Lisciotto, 2007).
Slobodan Milosevic
The most recent use of an international tribunal was in the trial of Slobodan
Milosevic, former President of Serbia from 1989-2000 (Encyclopedia Britannica, 2009).
Milosevic is known for setting off a series of Balkan wars against the Croats, Bosnians,
and Albanians lasting nearly a decade that were ultimately ended by a United States led
NATO bombing campaign (CNN, 1999; Left, 2002). His nickname is the “Butcher of
the Balkans” because of his crimes against humanity, resulting in the death of over
250,000 people (Benjamin, 2006). During the NATO campaign, Milosevic was indicted
on charges of war crimes and crimes against humanity that violated the Geneva
Conventions by the United Nations (PBS, 1999). He was arrested in 2001 and handed
over to the International Criminal Tribunal what was formerly Yugoslavia (CBC News,
20
2001; New York Times, 2001). Milosevic died while defending himself in the course of
the Tribunal in 2006 (Fox News, 2006).
International tribunals have been a legal judicial system used to hold individuals
accountable for crimes against humanity that violated the laws of war. Previous usages
of international tribunals provide further justification for the United States to once again
reuse them to prosecute terrorists. Although the United States tribunals for Al Qaeda and
Taliban combatants are not international, the previously discussed tribunals provide
examples of other nations participating in such types of trials for war criminals.
Rendition
As part of information gathering for ongoing military operations and case
building, Al Qaeda and Taliban members were interrogated by United States officials.
Intelligence believed that these members had access to valuable information that could be
used not only to build a case against their guilt for prosecution in a tribunal, but also to
aid ongoing combat operations. As part of the information gathering process, detainees
were sent to other nations for interrogations. This rendition raised controversy as critics
have declared this extraordinary rendition.
Rendition and extraordinary rendition are both common practices in the United
States. Persons suspected of criminal or terrorist activity can be legally transferred from
one state to another for arrest, detention, or interrogation (Barnett, 2008). This is known
as rendition, and is usually done through a formal legal process, often established by a
treaty (Garcia, 2009). The extrajudicial transfer of a person from one state to another is
known as extraordinary rendition. Historically in the United States, extraordinary
21
rendition began during the Reagan Administration, and has been continued by each
subsequent president to date (Garcia, 2009). Other countries have also used this process;
one of the most notable examples of extraordinary rendition is the capture of Adolf
Eichmann by the Israeli intelligence agents (Brager, 2007). Following 9/11, the United
States has been accused of using a form of extraordinary rendition that violates United
Nations agreements against torture.
The United Nations Conventions Against Torture (UN CAT) is an agreement by
participating nations that forbids the transfer of individuals from one state to another to
intentionally face torture (Barnett, 2008). The United States ratified the UN CAT, but
with a provision. Congressional record S17486-01 II.3 reads the United States
understands the phrase, 'where there are substantial grounds for believing that he would
be in danger of being subjected to torture,' as used in Article 3 of the Convention, to
mean 'if it is more likely than not that he would be tortured’ (Ravindran, 2006). This
“understanding” allows for the United States to transfer detainees to other countries that
practice torture if it is believed that the detainee is more likely than not to be tortured.
In addition to the provision, Barnett (2008) explains that section 241(b)(3)(B) of the
Immigration and Neutrality Act excludes the following individuals from the UN CAT
agreement if it is believed that they have:

Assisted in Nazi persecutions or engaged in genocide;

Ordered, incited, assisted, or otherwise participated in the persecution of an
individual because of the individual’s race, religion, nationality, membership in a
particular social group, or political opinion;
22

Have been convicted of a particularly serious crime, are a danger to the
community of the United States;

Are strongly suspected to have committed a serious non-political crime outside
the United States prior to arrival; and

Are believed, on the basis of reasonable grounds, to be a danger to the security of
the United States (Barnett, 2008).
With the understanding clause incorporated in the ratification by the Senate and
the exclusions in the Immigration and Neutrality Act, proving official misconduct
regarding the United States rendition of Al Qaeda and Taliban combatants is unlikely.
The Bush Administration has responded to criticism by stating that the United States
cannot fully control what happens after a detainee is transferred to another country
(Barnett, 2008). According to Garcia (2009) the United States government has claimed
that with their prison transfers they have always received assurance from the accepting
government that the transported detainee would not be tortured (Barnett, 2008). Proving
that the United States endorsed illegal prisoner transfers would be a difficult task. With
the “understanding” clause incorporated in the ratification by the Senate and the
exclusions in the Immigration and Neutrality Act, it renders prosecution unlikely to prove
official misconduct. Countries such as Italy have made it illegal to transport prisoners to
other countries where it is even possible for abuse to occur (de Vries, 2005). If there is a
chance that prisoner abuse may occur in another country, Italy will not transfer their
prisoners there. Laws could be updated to make the United States similar to Italy but
currently it does not exist.
23
Military Commissions Act
The use of military tribunals and information gathering tactics authorized by the
Bush Administration had long been objected to by critics. Eventually the Bush
Administration’s military tribunals were legally contested in the case of Hamdan v
Rumsfeld. Originally a citizen of Yemen, Salim Ahmed Hamdan was captured in
Afghanistan by militia forces and then turned over to the United States (Banusiewicz,
2004). Hamdan was charged with conspiracy to commit terrorism and arrangements
were made for him to face a review tribunal to determine if he was an unlawful enemy
combatant. While being held, his case was reviewed by the Supreme Court in 2006
under the title Hamdan v. Rumsfeld (Greenhouse, 2006). The court found that the
military commissions put in place by the Bush Administration lacked congressional
approval.
This ruling led to the passing of the Military Commissions Act, which legalized
congressional support for military tribunals. On October 17, 2006, President George W.
Bush signed the Military Commissions Act into law (Garamone, 2006). Chapter 47A of
the Act placed language into law that defined an unlawful enemy combatant.
(A) The term “unlawful enemy combatant” means—
(i) a person who has engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-belligerents who is not a
lawful enemy combatant (including a person who is part of the Taliban, al Qaeda,
or associated forces); or
24
(ii) a person who, before, on, or after the date of the enactment of the Military
Commissions Act of 2006, has been determined to be an unlawful enemy
combatant by a Combatant Status Review Tribunal or another competent tribunal
established under the authority of the President or the Secretary of Defense
(Cornell Legal Information Institute).
After the passing of the Military Commissions Act, the government had the legal backing
of Congress to try terrorists via tribunal (Addicot, 2006). Supporters of the act hailed its
passage as a victory for gaining congressional support in the War on Terror, while
opponents felt it was a violation of habeas corpus rights.
Despite the passing of the Military Commissions Act, it was still required that
suspected unlawful enemy combatants be reviewed before the Military Combatant Status
review tribunals (Elsea, 2005). The review tribunals do not determine guilt; rather they
determine whether suspected terrorists are in fact unlawful enemy combatants. Elsea’s
report for Congress explains that the review tribunals determine if an individual is an
unlawful enemy combatant the same way that the Army determines whether someone is a
legal prisoner of war. Tribunal review procedure requires that the government present all
evidence to the tribunal review commission (Elsea, 2005). The evidence presented must
be presumed to be accurate and genuine, even if the evidence indicates against the
unlawful combatant designation. Unclassified evidence is required to be presented by the
United States to the accused, whereas classified evidence is only presented to the
tribunal. The detainee’s legal council may view classified material in order to influence
the review commission’s decision. After evidence has been presented and the legal
25
council has countered with their argument, the commission determines whether the
detainee is in fact an unlawful combatant or not. If the commission determines that the
detainee is not an unlawful combatant, the detainee must be returned to his or her country
of origin (Elsea, 2005). Those who are determined to be unlawful combatants are to face
the tribunal system to determine if they are guilty of the crimes for which they have been
accused.
By 2005, all reviews of detainees held in Guantanamo Bay had been completed.
520 were determined to be unlawful enemy combatants, 38 were not, and 23 had been
transferred back to their home country (Elsea, 2005). For those determined unlawful
enemy combatants, legal changes occurred following the Supreme Court ruling of
Boumediene v. Bush. In 2008, the Supreme Court ruled in favor of Lakhdar Boumediene
concluding that prisoners held by the United States had a right to challenge their holding
by appeal in United States courts, even if they were not an American citizen or never
been processed to enter the United States (Oliphant, 2008). Justice Kennedy justified the
5-4 decision saying, “The laws and Constitution are designed to survive, and remain in
force, even in extraordinary times” , whereas Justice Scalia stated in his dissent, “A
consequence of the Court's majority decision will be that how to handle enemy prisoners
in this war will ultimately lie with the branch [the judiciary] that knows least about the
national security concerns that the subject entails" (US Supreme Court, 2007). This
decision did not end the use of tribunals to prosecute terrorists; instead it made it possible
for prisoners to appeal their being held to an appellate court. If the court agrees that their
holding is legal, they can still face tribunal; if not, they must be released. Despite
26
receiving legal setbacks, the Bush Administration pursued military tribunals as the
favored judicial system for terrorism prosecution. They believed they were optimal
because of the threat and nature of terrorism.
Terrorism and Asymmetrical Warfare
Terrorism has a long history that dates back to biblical times; the word terror
found its name during the French Revolution (Yungher, 2008). The FBI defines
terrorism as the unlawful use of force or violence against persons or property to
intimidate or coerce a Government, the civilian population, or any segment thereof, in
furtherance of political or social objectives. In order for terrorism to be successful it
often targets innocent civilians; 9/11 exemplified this since Al Qaeda, a radical Islamic
fundamentalist terror network, used the attacks in order to strike fear amongst the masses
(Yungher, 2008). Because the horrors of that day were completely unexpected and
unprecedented, even affecting United States and international markets, Al Qaeda’s
September 11th attack was unbelievably effective (Makinen, 2002).
Al-Qaeda is often viewed as the most lethal terror network, but it is not the only
type of terrorist group. There are many different types of terror groups that have different
philosophies. Terrorist groups can be extreme right wing groups such as Al-Qaeda, as
well as left wing, anarchist, single issue movement, separatist, nationalist, and
revolutionary groups (Yungher, 2008). This list does not include state terror, which can
be even more devastating when it is sponsored by nation states, such as Iran or Syria.
Several of the free nations have begun to realize the danger of terrorist groups and
have taken action to prevent their continuance. According to military theorist Carl von
27
Clausewitz: “War… is an act of force to compel our enemy to do our will” (as cited in
Barno, 2006, p. 15). However breaking the will of terrorists is difficult to say the least.
War does not necessarily translate into achieving victory. This is because terrorist groups
can successfully use unconventional means. Grange (2000) writes that terrorists utilize
unconventional means because their resources do not allow them to compete
conventionally against forces like the United
States (Moynihan, 2002). The unconventional warfare that terrorists wage is known as
asymmetrical warfare.
Asymmetrical warfare is described as conflict deviating from the norm or an
indirect approach to affect a counter-balancing force. O’Connor (2009) defines
symmetry in conflict as the rules and conditions that both sides operate within. The
Geneva Conventions are a set of rules, rights, and procedures that all sovereign nations
have ratified; effectively holding them accountable to its provisions. This is something
that the United States and its allies are required to follow. Terrorist groups are non-state
armed groups, therefore they cannot agree to the Geneva Conventions (US Department of
Justice, 2002). The international laws of war are clear: it is illegal for any terrorist group
to take up arms and engage a Geneva Convention abiding force or an innocent
population.
Intentionally violating the laws of war is a strategy for Al-Qaeda like groups
because they would not be successful against the United States if they fought
conventionally (Moltchanova, 2005). This is an advantage for terrorists because they
understand the legal parameters that the United States armed forces must operate within.
28
They intentionally attack forces when they know that their ability to respond has been
severely limited. For instance, terrorists know that if they fire on United States troops
while blending in with civilian populations, the troops cannot return fire because doing so
may risk civilian casualties. In order to improve their capabilities, terrorists intentionally
look for these types of strategies to gain an upper hand over Geneva abiding forces
(Moltchanova, 2005). Otherwise the technology, training, and resources of conventional
militaries would be overwhelming for terrorist groups. This is why terrorists use horrific
acts of violence against civilian populations, suicide bombings against military personnel
and many other despicable acts (Moltchanova, 2005).
The threat of asymmetrical opponents is very real. In fact the United States
military prepares and creates strategic plans to successfully counter asymmetric
opponents (Long, 2008). In order to understand terrorist intentions, it is necessary to
understand that these groups are unlike traditional foes. Terrorists prefer long, drawn-out
conflicts that test the will power of democratic nations (O’Connor, 2009). Democratic
nations on the other hand are accustomed to quick, decisive victories. This is why they
pour such tremendous resources into their militaries. Terrorists understand that years of
news covering small sustained losses over time begin to damage public support. This has
been the terrorists’ goal in Iraq and Afghanistan, and it is their hope that democratic
nations will begin to lose the public endorsement for military offensives (O’Connor,
2009). These terror groups attempt to repeat the Vietnam War, where frequent, small
casualty losses stripped public support, and ultimately led to the United States withdrawal
of forces.
29
Terrorists’ demented tactics even include trying to entice their enemy to commit
illegal acts that will be publicized. Abu Ghraib is a classic example of public upheaval
when a conventional force commits atrocities that are no different than those of terrorists.
Metz and Johnson (2001) explain that traditionally, superior forces unintentionally enter
into asymmetrical warfare under the heat of war, whereas irregular forces such as
terrorists enter into asymmetrical warfare intentionally (O’Connor, 2009). When the
moral force becomes compromised, the conflict can be viewed as immoral and the
support needed to sustain the war can be lost. Support is a necessity in this type of
conflict, sustaining support is why the military attempts to remain in a positive light
against terrorist groups.
In short, terrorists use illegal tactics to defend their interests and enhance their
effectiveness against law abiding forces. The United States cannot use the same
strategies as terrorists as they must fight legally. Therefore killing and capturing
terrorists is critical for success in the GWOT. The Bush Administration had determined
that successful convictions in tribunals were vital to the success of the United States.
However US philosophy was set to change after the election of President Barrack Obama.
Obama’s Proposals
Like President Bush, President Obama recognizes the imminent threat that
terrorism and unlawful enemy combatants pose to the United States. However, he differs
philosophically about the methods that the United States should use to bring these types
of individuals to justice (Harper, 2010). After winning the Presidency, Obama
announced that the United States would change course in the way that the country held
30
and prosecuted terrorists (The Sun, 2009). Obama believes that the Bush Administration
had strayed from America’s core values and that his changes would help to restore these
values. Specifically he believes that those held on suspicion of terrorism were not given
appropriate rights and should be tried in federal courts instead of military tribunals.
It is President Obama’s belief that the United States had practiced controversial
methods and tactics in gaining information from suspected terrorists in custody (Tapper,
Crawford-Greenburg, & Khan, 2009). President Obama feels that the United States can
be effective and successful in the GWOT while expanding the rights for the accused. In
doing so, United States policy concerning the holding and prosecution of suspected
terrorists is to shift from President Bush military methods and to adopt law enforcement
procedure. This effectively ends the practice of questionable prisoner transfers and
torture and closes the Guantanamo Bay naval facility. President Obama stated, “Today,
these decisions live up to our values as American people” (Tapper, Crawford-Greenburg,
& Khan, 2009). Shifting from military procedure to law enforcement procedure places
the role of prosecution into the hands of the federal court system. President Obama
believes that the federal court system is capable of handling the task of suspected terrorist
prosecutions, and that the United States will still be able to gain valuable information in
the GWOT. It is his intention to end controversial practices, and to operate in a manner
more consistent with traditional criminal apprehensions, holding, and prosecution to
return America to a “moral high ground’ (CNN, 2009).
Shortly after assuming the presidency, President Obama put his desires to shift
from Bush tactics into law. This was done by signing three executive orders concerning
31
the holding of suspected terrorists (National Archives and Records Administration,
2010). These executive orders were numbered: 13491, 13492, and 13493. Executive
Order 13491- Ensuring Lawful Interrogations orders the compliance with United States
domestic law and international agreements in the treatment of detainees (Woolley &
Peters, 2010). The passing of this order would require all officials responsible for
interrogating and questioning captured combatants to follow the Federal Criminal Trial
and Evidence Collection Procedure for gaining information. Future handling of all
terrorists would require that the United States apply all United States laws and
international treaties that it had ratified.
The second executive order passed was the Review and Disposition of Individuals
Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, Order
13492, which was effectively put into place to close the prison at Guantanamo Bay.
Commonly known as “Gitmo”, Guantanamo Bay had become a highly controversial
military prison in Cuba, where the United States military held terrorists (CBC News,
2009). Although Guantanamo Bay prison is in Cuba, it is actually part of a United States
Naval Base. The land in Cuba that is now the naval base has been leased by the United
States since 1898, after the United States and Cuba signed the Cuban-American Treaty,
as part of conditions to end the Spanish-American War (Heinl, 1962). Following the
conflicts in Afghanistan and Iraq, the US Government chose Guantanamo Bay as the
place to hold terrorists because if detainees were held outside of the United States, they
would not be granted constitutional rights (Roosevelt, 2006). Detainees without
constitutional rights would not be entitled to civilian courts, and military tribunals could
32
be used as the judicial system for conviction in place of federal courts.
Executive Order 13493, Review of Detention Policy Options, orders the
exploration of lawful options to the detention of captives in the Guantanamo Bay
detention camps (Woolley & Peters, 2010). This order addresses what to do with the
detainees held at Guantanamo Bay once the prison is closed. Government officials have
begun to look for other places that suspected terrorists from the GWOT could be held
besides Guantanamo. Order 13493 has laid the foundation for the transfer of prisoners to
federal prisons inside of the United States (Tapper & Travers, 2009). Bringing
Guantanamo inmates to federal prisons inside the country would grant detainees the right
to have trial in federal criminal court. Obama’s plan to use federal criminal courts for
prosecution was officially declared on November 13, 2009, after Attorney General Eric
Holder announced that Khalid Sheik Mohammed and his accomplices would be brought
to Manhattan, New York to face trial in a federal court (Fox News, 2010).
Khalid Sheik Mohammed
Khalid Sheik Mohammed (KSM) had been arrested by United States authorities
for being the mastermind who planned the attacks on 9/11 that killed 3,000 Americans
(Fox News, 2010). Holder revealed that the United States would have Mohammed and
his accomplices tried and face the death penalty in a federal criminal court for the killing
of innocent Americans (Meek, 2009). The ACLU had been representing the five
detainees and declared this a triumph for civil liberties, whereas many political leaders
and opponents were outraged (Tapper & Travers, 2009). Effectively, this decision
33
provides suspected terrorists the protections of a fair trial in criminal court, and a defense
that can use all measures necessary to fight on the terrorist’s behalf (Meek, 2009).
Following political backlash over the decision to prosecute Khalid Sheik
Mohammed in Manhattan, President Obama announced that the United States would
consider other cities for prosecution (Associated Press, 2010). During an interview that
aired during the Super Bowl pre-game, Obama announced that his Administration would
look into other potential sites to prosecute KSM. He also explained that Manhattan had
not been ruled out of question. At the time of this writing, his Administration has not
proposed other potential trial sites.
Summary
Historical actions and current law have been discussed that expand the
understanding of terrorist criminal activity and the options available to the President for
prosecution of such crimes. Currently, the United States can use military tribunals or
federal courts to try unlawful enemy combatants suspected of terrorism. This is
significant because Presidents George W. Bush and Barrack Obama fundamentally differ
on which judicial system should be used for these prosecutions. This has created
controversy as to which system is better suited for such criminals. Because of this
controversy it became important to better understand the issue of terrorism prosecution in
order to establish the impact of transitioning United States policy.
34
Chapter 3
METHODOLOGY
Since September 11, 2001, the United States has been committed to a sustained
war on terrorism. Inevitably this war has lead to the capture of unlawful enemy
combatants who are being detained on suspicion of terrorism and awaiting either trial or
release. The issue of how to prosecute those suspected of terrorism has become
politically sensitive from both sides of the aisle. Currently there are two systems of
justice that can be used to try these individuals: military tribunals or federal criminal
court. The intent of this research is to examine and evaluate the method by what the
United States provides a trial to unlawful enemy combatants suspected of aiding or
committing terrorist acts against the United States. In order to examine the impact of
switching from tribunals to federal criminal trials for the prosecution of terrorists, an
analysis of the policies will be conducted. By doing so, it is expected that the most
sensible justice system as a policy will be identified and recommended for
implementation on behalf of the American citizens and interests of the United States.
John V. Patton and David S. Sawicki’s policy analysis in six steps will be used to
systematically evaluate the two policies. Their first step is to verify and define the
problem, which has been done above. The second step is to establish criteria for policy
evaluation. For this study, the evaluation criteria will be as follows:

Trial Costs

The applicability of the Bill of Rights

Media and its affect
35

International opinion

The effects resulting from detainees proximity to Americans

Recidivism
These criteria have been selected because it is believed that they will reveal
important consequences for determining criminal justice effectiveness for the prosecution
of unique criminals such as terrorists. Cost effectiveness has been included because it is
necessary to understand how much each policy will cost if implemented. The
applicability of the Bill of Rights as a criterion will examine the protections that each
judicial system affords the accused who are suspected of terrorism. This will allow for a
better understanding of how the Bill of Rights protections shape trials and whether it will
affect trial outcomes. The selection of media will provide better awareness of their role
and abilities when covering suspected terrorist trials. International opinion has been
included as a criterion because the GWOT is led by the United States, but aided by other
nations. Proximity of detainees to Americans has been selected because it is necessary to
understand how the location of holding suspected terrorists will affect American citizens.
Lastly, recidivism is chosen to include the possibility of reoffending. Reoffending can
have harmful consequences, and because of this, both policies need to examine this issue.
Together, these six criteria will be used to analyze the effectiveness of both judicial
systems.
The most effective judicial system for the prosecution of suspected terrorists
needs to be recommended if the United States is to be successful in the GWOT. The
selection of these criteria establishes critical focal points that can help to determine the
36
policy effectiveness of both judicial systems. In doing so, this is one model that can be
used to analyze which judicial system is the most effective system for the prosecution of
suspected terrorists.
The procedure will begin by using the criteria to examine the consequences of
each judicial system as if they were the system used to prosecute terrorists. Using each
criterion to examine both judicial systems will provide better understanding for policy
evaluation. Evaluation will use the findings found in the examinations of each justice
system to systematically explain why it is more beneficial to use military tribunals or
federal criminal courts for the prosecution of terrorists. In total, each criterion will have
independently evaluated both justice systems for effectiveness. The recommendation for
which policy is to be implemented will derive from the findings found in the evaluations.
The evaluations of both judicial systems using each criterion will be reflected in
an outcome matrix. The judicial systems will be along the columns, and the evaluative
criteria will be along the rows. Each criterion’s evaluation will be reflected for both
justice systems by an assigned score. These scores will either be a +, -, or a 0 symbol.
When a policy receives a + score, it is the preferred system over the other based on that
single evaluative criterion. Similarly, when a policy receives a – score, it is the least
preferred system based on that single criterion. If the application of a criterion does not
have any effects, or its effect is unknown, it will receive a neutral score of 0.
A sample matrix is provided on the next page.
37
Table 1: Sample Matrix
Tribunals
Federal Courts
Tribunals
Score
Federal
Score
Cost
X
Y
+,-,0
+,-,0
Bill of Rights
X
Y
+,-,0
+,-,0
Media
X
Y
+,-,0
+,-,0
International
Opinion
X
Y
+,-,0
+,-,0
Proximity
X
Y
+,-,0
+,-,0
Recidivism
X
Y
+,-,0
+,-,0
Criterion
Note: + symbols indicate that that judicial system is preferred over the other based on that
criterion. – symbols indicate that that judicial system is not preferred over the other
based on that criterion. 0 symbols indicate that the judicial system has been found to not
have any effects, or its effects are unknown based on that criterion.
38
This research design has both strengths and weaknesses. Projecting policy
outcomes can lead researchers into a mass of information that can be difficult to analyze.
It becomes critical to break down each policy using shared evaluative criteria that allows
the researcher to step back and fully assess each policy. This is because each policy has
complexities that need to be fully understood before a recommendation can be made as
the best choice. Following the evaluation of both policies using the selected criteria, it
will be possible to determine which policy is most beneficial for implementation. In
doing so, this strengthens the analysis because recommendation will be made after
evaluations have been conducted.
On the other hand, weaknesses remain because it may be possible that other
important evaluative criteria have not been included in the evaluation process. This
analysis is only one model that has been used to determine policy effectiveness.
Potentially there are other critical criteria that could be applied to each justice system for
measurement that would enhance understanding about policy effectiveness. In a policy
analysis as complex as this, selecting only six criteria may leave out other measurements
that could affect which policy is selected for implementation. Additional evaluative
criteria included in the analysis could potentially enhance the understanding of which
system is most effective. This could change the evaluation of each system, thus changing
which policy is selected for implementation.
Despite this weakness it is believed that this policy analysis contains sound
evaluative criteria that will effectively determine the impact of transitioning from military
tribunals to federal criminal courts. The evaluation criteria selected will provide key
39
points of focus covering economic costs, national security, and the safety and comfort of
American citizens. Understanding the impact of this transition will determine whether it
is a wise choice to shift from military tribunals, or whether they should remain as the
judicial system to prosecute terrorists. To determine this, the final recommendation for
implementation will derive from the analysis of critical policy criteria.
Now that the evaluative criteria have been selected, and the methodology has
been discussed, the alternative policies will be examined by applying the evaluation
criteria and evaluating the impacts each will have on the military tribunal and federal
court systems. This is Patton and Sawicki’s third step.
40
Chapter 4
ANALYSIS OF DATA
Trial Costs
The first evaluation criterion examines the economic impact of unlawful enemy
combatant trials. This criterion was chosen because the United States is expected to be in
debt by $13 trillion at the end of 2010 (Sahadi, 2010). Because of this massive deficit it
is necessary for the United States to consider the costs of such trials when deciding which
trial system to utilize. Charlie Savage (2010) of the New York Times reported that by the
start of this year there are just under 200 detainees still held at Guantanamo Bay. Of
these, 110 will be repatriated or transferred to other countries and 40 are designated for
prosecution with terrorism related charges. The other 50 that remain have been deemed
too dangerous for release, but government officials are currently unsure how to
effectively prosecute them at this time. In total, this leaves 90 detainees who are awaiting
prosecution. Guantanamo Bay funding is included in the defense budget at an estimated
$90-118 million annually that includes daily naval facility operations as well as the
holding of suspected, high profile terrorists (Bowker & Kaye, 2007). Bowker and Kaye
(2007) have also indicated that the United States spent a one-time $54 million to build
high-security detention facilities at the Guantanamo naval facility to hold these detainees.
Financial reports have been released that estimate the cost for trying these
individuals by tribunals. In order to pay for tribunals held outside of the United States,
H.R. 6054 proposed $21 million for the year 2007 and $141 million for years 2008-2011
(Congressional Budget Office, 2006). This bill would pay for all tribunals, assignment of
41
counsel, compelling witnesses, evidence, and post-trial reviews and appeals. It is
estimated that this bill would pay for all who have met the eligibility for trial by tribunal
since September 11, 2001 and until 2011. The requested sum for H.R. 6054 is believed
to be an accurate proposed budget, and if more funding is needed to pay for extra costs in
law enforcement, court proceedings, or prison operations; it is not expected to be
significant (CBO, 2006). See Table 2, which shows spending based on Congressional
Budget estimates in 2006.
Table 2: Changes in Spending Subject to Appropriation
Estimated
Authorization Level
2007
2008
2009
2010
2011
29
30
31
31
32
31
32
Estimated Outlays
21
28
29
Note: Numbers are by fiscal year, in millions of dollars
The total costs of trying all combatants in federal trials is currently unknown.
Officials have created an estimated budget for the trial of the 9/11 mastermind, Khalid
Shaikh Mohammed, and his accomplices. The Wall Street Journal (2009) reported that
Attorney General Eric Holder had chosen a Manhattan federal courtroom as the location
for where KSM and his accomplices would be tried. Choosing a city such as New York
leaves the majority of security in the hands of the New York Police Department. In
November of 2008, the NYPD expected the costs to reach $75 million, but New York
Mayor, Michael Bloomberg later revealed to the Associated Press that the first year of
42
providing the required security for these detainees would reach $216 million (Fox News,
2010). If the trial took years to complete rather than months, security was expected to
reach $200 million annually.
Hosting trials within the United States in areas like Manhattan will tally in the
hundreds of millions per trial because law enforcement agencies like the NYPD fear that
the trial of a terrorist provides a high profile target for future attacks (Fox News, 2010).
The courthouse offers a physical target, and high ranking officials will require close
protection because they provide an opportunity for assassinations that could disrupt the
trial. Extra security measures would include closing down the courtroom surrounding
area, car check points, bomb-sniffing dogs, rooftop snipers, and helicopter patrols by the
NYPD (Fox News, 2010). Courtroom security would be provided by the US Marshal
Service, leaving all other necessary security of the trial in the hands of the NYPD (Fox
News, 2010).
Applicability of the Bill of Rights
The next evaluative criterion is the Bill of Rights and the scope of its application
to those that are accused of terrorism. Being that foreign terrorists are not American
citizens, they are not entitled to all of its protections. However, Bill of Rights protections
may be granted if the government chooses to do so. Military tribunals limit the
application of Bill of Rights protections. In order to be tried by a tribunal, the accused
must be reviewed before a military commission review board that determines eligibility
(Elsea, 2005). If the review board determines the accused is eligible, a chief prosecutor
drafts charges, and a military commission is created. A military judge presides over all
43
commissions, and commission members are drawn from the armed forces (Whitehouse,
2006). In a tribunal there would be 12 commission members who vote on whether the
accused is innocent or guilty and on his or her sentencing, similar to a jury. Prosecutors
and defense counsel are drawn from the JAG corps, and the accused can also consult
civilian defense counsel if he or she chooses too. Trial procedure, sentencing, and
appellate review by the District of Columbia generally parallel the Uniform Code of
Military Justice, which is used for court marshalling United States service personnel
(Whitehouse, 2006). Military tribunals do offer certain Bill of Rights protections found
in Amendments 4, 5, 6, 8, and 14, but not all of the protections. Tribunals offer the
following:

The presumption of innocence

Proof of guilt beyond a reasonable doubt by legal and competent evidence.

The right to know levied charges as soon as practicable.

Prosecution must disclose exculpatory evidence to the defense.

The rights to call and cross examine witnesses (subject to rules regarding
production of witnesses and protection of information).

No adverse inference for remaining silent.

Evidence may only be used if the judge believes it has probative value.

Coerced statements cannot be used if the judge believes that the situation
in which they were gathered leaves the statement unreliable and lacking
probative value.
44

The accused has the right for two appeals including to the D.C. circuit.

The accused cannot be tried twice for the same offense (double jeopardy).

The overall requirement that any military commission proceeding is full
and fair.

In order to prepare a defense, each accused has Military Defense Counsel
provided at no cost to the accused. Cost of counsel assignment is included
in H.R. 6054 (Congressional Budget Office, 2006).

Translators will be provided at no cost.

Commission must be open, unless the judge believes there are
circumstances where certain parts are to remain confidential (Whitehouse,
2006).
While certain rights are provided, evidence collection does not follow Federal
Criminal Trial Procedure or Federal Rules of Evidence Collection because tribunals take
into account the unique battlefield environment that is unlike traditional law enforcement
intelligence gathering. For instance, soldiers are not required to obtain a search warrant
to search dwellings while conducting military operations (Whitehouse, 2006). Tribunals
do not require Miranda rights to be issued upon arrest because doing so before an
interrogation may hinder intelligence gathering. However all evidence must have
probative value, despite being collected under different procedural rules (Whitehouse,
2006). During tribunal trial, the accused has the right to not self incriminate. Hearsay
evidence may be admitted, but must be reviewed to ensure fairness (Whitehouse, 2006).
45
Certain evidence may be withheld from the accused if the judge deems it crucial to
national security, but if withheld, the judge must believe that withholding does not reduce
fairness for the individual accused (Flynn, 2007). Findings of guilt require agreement
from two-thirds of the military commission panel members, and a death sentence requires
unanimous agreement among all 12 members of the panel (Whitehouse, 2006). Appeals
could be sent to the DC circuit, which could then be appealed to the Supreme Court.
Hosting trials inside the United States such as the one proposed for
Manhattan grants the accused rights equal to an American citizen. Essentially, any
accused non-American terrorist would be brought into the United States and stand trial
the same way as an ordinary American or foreign visitor does when suspected of
committing a crime ( Roosevelt, 2008) . The crimes that the accused have committed
would be viewed as similar to ordinary domestic crimes with a federal judge as the
presiding official (US Courts, 2007). All defendants would be presumed innocent until
proven guilty beyond a reasonable doubt. In federal criminal courts, all guilty verdicts
and sentencing require the unanimous agreement of 12 jurors, and the accused has the
right to appeal to an appellate court.
Accused terrorists would be afforded the full Bill of Rights if trial occurred in
United States federal court, specifically the full rights under Amendments 4, 5, 6, and 8.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
46
particularly describing the place to be searched, and the persons or things to be
seized (Cornell Legal Information Institute).
This requires that procedure protects the accused against unreasonable searches and
seizures, and warrants must be based on probable cause. Warrants must also be
supported by oath or affirmation, and they must describe the place to be searched, as well
as the person or items to be seized. The Fifth Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in actual service in time of war or
public danger; nor shall any person be subject for the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation (Cornell Legal Information Institute).
Specifically an indictment must be found by a grand jury (US Courts, 2007).
Once charged, the indictment can only be reduced in scope, and new charges cannot be
levied against the accused. The accused has the right to not self-incriminate; confessions
are incompetent if involuntary. This effectively establishes the common rule law that
denies coerced confessions, such as from torture (Cornell Legal Information Institute).
Prior to any questioning by law enforcement, the accused must be informed of his or her
rights. These are the rights to remain silent, the right to consult with an attorney, and to
have an attorney present during questioning, and if it cannot be afforded, an attorney will
47
be provided at no cost to the accused. Hearsay evidence will only be admitted if a
subpoena is issued and the person providing the testimony is cross-examined. Finally,
the accused cannot be tried again if found innocent, under the double jeopardy statute
(US Courts, 2007). The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the state and district wherein the crime shall
have been committed, which district shall have been previously ascertained by
law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of counsel for his
defense (Cornell Legal Information Institute).
This amendment provides the accused the right to a fair and speedy, public trial. The
press is entitled access to the court by the freedom of the press protection afforded in
Amendment 1. The exclusionary rule is also interpreted through this amendment. The
federal government is barred from using evidence that is in violation of the constitution
and the Federal Rules of Evidence Collection (US Courts, 2007).
The Eighth Amendment reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted. Any evidence obtained through unusual
punishment will not be allowed to be used against the accused, this includes
torture (Cornell Legal Information Institute).
48
Essentially in a federal criminal court, any suspected terrorist who is foreign born will be
afforded the protections that are outlined in Amendment 14. It states:
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No
state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws (Cornell Legal Information
Institute).
Amendment 14 requires that the accused be provided the full protections of amendments
4, 5, 6, and 8.
Media and Trials
In criminal trials, the media are protected by the first amendment so that they can
report freely about trial content and proceedings. Traditionally in criminal trials this has
been done to ensure that the trial was conducted fairly, and the media would report if
civil rights had been violated (International Bar Association, 2008). While such media
coverage is viewed to be a victory for constitutional law, the ramifications for the United
States in the prosecution of accused terrorists remain unclear.
Not understanding these ramifications can be problematic. The problem of
unrestricted media coverage is that all content within the trial is open for reporting.
When suspected terrorists take the stand in a federal trial it is not known what the accused
will say. Perhaps, they will exercise their right to remain silent, they could answer the
49
questions that they are asked appropriately or they can potentially attempt to use the stand
as a platform to proliferate their own agendas (Krauthammer, 2009). If the latter scenario
occurs, it will require the judge to intervene to end the proliferation. Anything that is
spoken on the stand before the judge intervenes is open for reporting. Furthermore,
media coverage will also be able to report on the evidence against the accused. This
would include the reasons for arrest, detention, and trial. Those held at Guantanamo Bay
have been captured on suspicion of committing or aiding terrorism in other countries.
This means that instead of being apprehended by law enforcement, they have been
apprehended by United States military and intelligence personnel (Krauthammer, 2009).
The release of how suspected terrorists were apprehended to the public would
provide access to sources and methods that the United States uses to capture suspected
terrorists. Any information released to the public has the potential to be accessed by
terrorists and enemies of the United States. In tribunals, not all information is open to the
public, and the judge can prevent the press from reporting sensitive information to the
public (Seva, 2002). By limiting media coverage, certain aspects of the trial can remain
confidential, and thus information that the judge feels is of too much importance to
national security will not be accessed by any one other than security cleared officials.
International Opinion
Many international partners do not approve the practice of limiting constitutional
rights for suspected terrorists in order to use military tribunals. Former Prime Minister of
Great Britain Tony Blair is one of the European leaders who have called for the closure
of Guantanamo Bay and called for suspected terrorists to be tried in American courts
50
(Greenberg, 2007). The use of Guantanamo Bay and tribunals as a long term solution to
the handling of foreign, suspected terrorists has become a dark spot that some nations do
not support.
Certain nations view it as hypocritical for the United States to try international
detainees without constitutional protections because the United States requests other
nations to provide American citizens the protections of the arresting government’s
constitution (Seva, 2002). Spain has stated that they will not release a prisoner to the
United States if they have the potential to face a military tribunal instead of a
constitutional trial (Greene, 2006). Many in the European community want those held on
suspicion of international terrorism to be tried in civilian courts. This has already been
publicly confirmed by the United Kingdom, Germany, and France (Greenberg, 2007).
Detainees and Proximity
The policy of placing detainees in close proximity to Americans has two main
issues. First is the propensity for new terrorist acts to occur, and second is the fear
among citizens when detainees are held close to large populations. In order to have a
trial in the United States, detainees would have to be brought into a federal detention
facility; for instance the Thomson Correctional Center has been proposed as a possible
detention facility to hold suspected terrorists (Parsons, 2009). The Thomson Correctional
Center is 150 miles from Chicago.
Handling detainees within the United States poses several logistical problems and
potentially provides new targets for terrorists. Security at Guantanamo Bay is currently
maintained by United States military personnel (Rhem, 2005). Although it is close to the
51
Florida Keys, the distance from Cuba to Florida is 90 miles, separated by water
(Wickham, 2002). The New York Police Department fears that holding terrorist
prisoners inside of the United States will provide a target for new terrorist attacks by
other terrorists who are trying to undermine United States policy (Fox News, 2010).
Suspected terrorists held inside of federal prisons, would need to be transported into
courtrooms. This places security in the hands of federal prison officials, US Marshals,
and local police agencies (Fox News, 2010). Prisons would need extra security to protect
facilities, and transportation services would require enhanced security to transfer these
inmates. Not only would extra security be needed for the handling of these detainees, but
the fear of nearby Americans could potentially rise knowing that these increased risks are
in their backyards (Tapper, & Travers, 2009).
Recidivism
The functions of prisons are not only to provide punishment, but also to hold
criminals away from society so they are unable to continue committing crimes
(Carruthers, 2010). Similarly those suspected of war crimes are also held so they can no
longer continue committing acts of war.
The danger of terrorist recidivism is now understood. The Associated Press
reported that Abdul Qayyum, a former Guantanamo Detainee, is expected to be the new
number two officer in the Afghan Taliban hierarchy (Gannon, 2010). Quayum was
formerly held at Guantanamo Bay, but was released without a federal trial or tribunal
because he said he wanted to return to Afghanistan to help his family. Now Afghani
intelligence believes he will be one of the most senior officers in the Taliban. United
52
States intelligence believes that 20 percent of those released from Guantanamo Bay are
returning to the battle zones to retake up fighting against NATO troops, and that number
is believed to be growing (Gannon, 2010). Both federal trials and tribunals are
susceptible to potentially allowing suspected terrorists to return to the battlefield against
United States and allied troops. Neither federal trials nor tribunals can prevent convicted
terrorists from returning to terrorism after serving a sentence. This leaves open the
possibility for convicted terrorists to once again take up terrorism. Statistically, this is an
alarming number for the United States in its attempts to reduce global terrorism.
The criteria used to examine the two justice systems have revealed significant
findings. Based off these findings, potential consequences for using each system to
prosecute accused terrorists have been revealed. This is important because the
consequences may potentially have major impacts on the interests of the United States
and its citizens.
Results
Thus far, the consequences of each criterion on the two justice systems has been
examined; step four, the evaluation of each policy using the established criteria will now
be discussed.
Trial Costs
The cost it would take to provide security to try these individuals inside the United States
is expected to be enormous, and would far exceed the cost of military tribunals.
Considering the national deficit, $200 million dollars per year to host a trial for a
suspected high-profile terrorist is unaffordable. The proposed Manhattan trial is just one
53
out of 90 potential trials, leaving the cost for security of all these trials in the billions of
dollars. In addition to the massive costs, the threat of the trial becoming another terrorist
attack would require extra officers to provide security rather than policing the city. This
would place strain on police departments. Cities that have to use their police forces for
trial security would lose officers combating daily crime, potentially leaving the city
without enough officers for effective policing. Tribunals would not require this type of
police presence because they are done in remote locations, not announced to the public.
According to budget estimates, security costs of the KSM trial would be more than
enough to pay for all tribunals from 2001 to 2011. Based on the estimates, tribunals are
drastically less expensive, and do not place a burden on law enforcement. Therefore,
tribunals are more cost effective than federal courts.
Applicability of the Bill of Rights
The Bill of Rights was originally drafted to protect Americans from obtrusive
governmental abuses. The justice system of the United States is designed to provide
American citizens equal justice. In the case of international terrorism, the individuals
accused are not United States citizens, nor were they apprehended inside American
borders.
Trying these suspects as criminals in federal court can be problematic because
they are often captured in third world countries using military rather than law
enforcement procedure. This presents a difficult problem because criminal trials require
that Federal Criminal and Evidence Collection procedure is followed. Suspected foreign
terrorists were not arrested using lawful search and seizure methods and not given
54
Miranda warnings. Confronting the accusing witnesses would be problematic because it
would take a tremendous effort to track down witnesses, and include them in the trial
process by bringing them back to the United States to testify against the accused. By not
including key witnesses, this creates a challenging scenario for testimony validation.
Any one of these reasons could be used for case dismissal, or repeated appeals because
they are examples of Federal Criminal and Evidence Collection Procedure violations.
It is critical to United States anti-terror efforts to successfully prosecute suspected
terrorists. War crimes and terrorism are not common crimes against society; rather they
severely threaten the safety of the United States and its citizens. If a suspected terrorist is
indeed guilty, it becomes a national security matter to have that individual brought to
justice. While the Bill of Rights and fair trials are important to the integrity of the United
States, these protections can be problematic for case building. It is true that tribunals are
not held to the same standard of fairness as federal trials, but they have shared protections
intended to prosecute war criminals as fairly as possible. Federal trials require law
enforcement case building that is not always possible for the prosecution of all
individuals captured on battlefields. The application of the Bill of Rights is important,
but in international terrorism cases, the imminent threat of terrorism is too great of a
danger to allow for case dismissals because military and intelligence operatives did not
use Federal Criminal and Evidence Collection Procedure. Because law enforcement are
not the agents capturing suspected terrorists in foreign countries, evaluation of the Bill of
Rights protections has determined that it is more effective to use military tribunals over
federal criminal courts.
55
Media and Trials
The media plays an important role in this policy analysis. Unrestricted trial
coverage could include military and intelligence secrets, operations, strategies, methods,
tactics, and sources that could threaten future anti-terror operations. Releasing trial
information will give enemies access to all of this information. Furthermore,
prosecution, judge, and juror identities could be released, which could potentially
jeopardize the case or innocent lives if threats of intimidation and assassinations are made
against trial officials. Drug cartels have already been using threats and intimidation
against public officials in other countries; it is not unthinkable for it to be repeated here in
the United States by terrorists.
The media would also be able to report what is said when the suspected terrorist
takes the stand. This could range from simply answering the questions they are asked to
attempting to use the stand to promote Jihad and anti-American propaganda. If an
attempt is taken to use the stand for proliferation of personal agendas, the judge would be
required to intervene and end the proliferation. Before the judge ends the proliferation,
the media could report what the individual on the stand stated. Hypothetically, this could
be negative public relations for United States’ antiterrorism efforts and policy. For these
reasons, the media needs to have certain restrictions when covering the trials of terrorists.
Military tribunals grant judges the authority to block the media from sharing privileged
information that could potentially bring about dangerous consequences. In doing so,
intelligence and military secrets, and the identities of key operatives, witnesses, and
56
officials would remain secure. Based on this reasoning, tribunals are selected as the most
effective choice for the role media would play in terrorist trials.
International Opinion
The opinion and cooperation of international partners in the war on terror is
another important evaluation criterion. Assistance of other nations can help limit the
growth of terrorism and lead to the apprehension of suspects believed to be dangerous
threats. Some nations in the international community prefer federal trials as the method
of prosecution because when American citizens are captured and tried in other countries
they are generally provided the foreign government’s constitutional protections.
Likewise, suspected foreign criminals captured in the United States by law enforcement
are provided the full protection of the Bill of Rights. However, when suspected
international terrorists are captured abroad, the United States may choose to withhold the
full protections found in the Bill of Rights. Nations opposed to the use of military
tribunals can view it as hypocritical to demand that American citizens be provided
another nation’s constitutional safeguards, yet the United States may withhold certain
constitutional safeguards for suspected terrorists in tribunals. This can be problematic for
the United States because international cooperation from its allies in the capturing and
conviction of terrorists is of assistance. Based on these reasons for the international
opinion criterion, federal criminal courts are selected over the use of tribunals.
Detainees and Proximity
Bringing suspected terrorists into the United States poses many significant
problems. Placing detainees in close proximity to citizens of the United States can
57
potentially raise fear for Americans. Terrorists captured in the GWOT are dangerous
individuals who despise Americans and the United States. It is very common for
terrorists to be connected to a larger network, such as Al-Qaeda, that is continually
plotting attacks. Locating suspected terrorists inside the United States may provide a
target of opportunity for further terrorist attacks. Potential targets include the courthouse
itself, court officials, key witnesses, security personnel, and innocent third parties. If any
of these were attacked, United States efforts to prosecute terrorism would be undermined,
the trial would be put on hold, and public fear would soar to the levels after 9/11 once
again. Holding trials confidentially, outside of the United States or in remote locations
would reduce the risk for terrorist attacks. Minimizing the risk of attacks will help keep
public fear low. Reducing the chance of a new terrorist attack and holding public fear
low is very important in the selection of which policy should be recommended for the
prosecution of terrorists. For this reason, military tribunals are the preferred justice
system based on this criterion.
Recidivism
The last criterion included in the analysis is recidivism. Recidivism is always a key
concern in criminal justice discussion, and terrorism is no exception. Both military
tribunals and the federal justice system may not prevent terrorists from recidivating.
Unless sentenced to life in prison or death, both systems will eventually have to release
terrorists when the sentence is complete. If the inmate is not rehabilitated, it is a very real
possibility that released terrorists might reengage in terrorist operations. Neither system
58
appears more favorable over the other at reducing this risk; therefore it is impossible to
select one as the optimal choice.
Outcome Matrix
All evaluations have been simplified and transferred into Table 3 (see next page).
Table 3: Outcome Matrix
Criterion
Cost
Tribunals
Federal Courts
$162 million for years 2001- 2011.
Total costs unknown, but expected
This covers complete tribunal
to be in the billions. KSM Trial and
expenses including post-trial
security estimated at $216 million
reviews and appeals.
for year one. Each additional year
estimated at $200 million annually.
Provides some protections from
Fully provides Amendments 4, 5, 6,
Amendments 4, 5, 6, & 8. This is
8, & 14. All Federal Rules of
Tribunals Score
Federal Score
+
-
59
done to account for operating
Procedure and Evidence Collection
environment of intelligence and
must be followed. This can lead to
military personnel. Tribunal is
case dismissals because intelligence
intended to operate as fairly as
and military personnel do not follow
possible for accused.
this procedure.
Judge can restrict access to
Media is protected by first
sensitive information. This
Amendment to report freely. This
prevents release of national
includes secrets and stand
security secrets to the public.
testimonies.
Some believe they are
Some view federal trials as equal
International
hypocritical because arrested
protection to all accused of crimes.
Opinion
Americans are usually provided
This ensures the fairest trial possible.
arresting nation's safeguards.
Full cooperation with US if federal
Bill of Rights
Media
+
-
+
-
-
+
+
-
0
0
trials are used.
Proximity
Tribunals are held outside of the
Detainees would be brought into
US. This keeps the threats of
US federal prisons. This place
new terrorist attacks and public
burden on law enforcement to
fear low.
provide extra security to prevent
new terror attacks and potentially
raises public fear.
Recidivism
Tribunals are unable to prevent
Federal trials are unable to prevent
terrorists from recidivating
terrorists from recidivating
after release.
after release.
Policy Recommendation
All evaluative criteria have been applied to each justice system and analyzed. Out
of the six criteria, four indicate that military tribunals would be the best trial to use.
International opinion was the only criterion that preferred federal trials and recidivism did
not favor either system over the other. The best result would have been preferred if the
evaluations could unanimously select one justice system over the other, but that was not
the case. Lacking unanimous international opinion is not enough to sway the overall
outcome of the recommendation for policy implementation. The Bush Doctrine defined
60
that the President is to use any legal means necessary to protect the citizens and interests
of the United States. This includes using military tribunals without the full support of the
international community if they are believed to be more effective at prosecuting
suspected terrorists.
Currently, President Obama has indicated that he would like to improve the core
values of America by using federal criminal trials for suspected terrorism prosecution.
However, he has not established any plan for how this would increase international
support. Without conveying how the use of federal trials for suspected terrorism
prosecution would specifically support the role of international partners in the GWOT,
this analysis cannot give more weight to the international opinion criterion than the other
criteria when determining policy recommendation. Despite not having all evaluative
criteria unanimously select one system, military tribunals received the most favorable
evaluations, and the use of federal trials received the least favorable evaluations. Based
on these results, military tribunals are the recommended policy to implement at this time
for most effectively prosecuting suspected terrorists against the United States.
Proposal of an Alternative Policy
The fifth step in Patton and Sawicki’s policy analysis methodology calls for the
proposal of an alternative policy that could be implemented. This is done to identify an
alternative policy that could be implemented if the recommended policy falls short of its
goals after implementation. The proposal of an alternative policy is for Congress to pass
legislation for the creation of a new court system that specializes in national security and
terrorism (Taylor, 2007). This new court system would be created specifically to handle
61
national security matters that include intelligence and military methods, sources,
identities, and strategies (Eviatar, 2008). Trials involving unlawful enemy combatants
would be perfect candidates for this type of judicial format. The National Security Court
(NSC) would have congressional oversight and essentially be a hybrid of federal criminal
courts and military tribunals (Goldsmith & Katyal, 2007).
To prevent abuse of power, the NSC would be independent of the Executive
Branch and each trial would have a federal judge presiding. This is different from the
tribunal system. Presiding judges could be selected by the Chief Justice based on their
fitness for the assignment (Taylor, 2007). A jury of 12 military personnel would be
selected, requiring two-thirds vote of all members to determine guilt, and death penalties
would require unanimous voting. The media would be able to cover the trials, but unable
to report as freely as they do in criminal trials (Eviatar, 2008). Another key point, the
NSC would not provide the accused the full protections of the Bill of Rights found in
federal trials, but it would be increased from what is provided in military tribunals
(Goldsmith & Katyal, 2007).
The NSC would account for the type of cases it is designed to handle. Cases
would not be concerned whether arrestees were given Miranda rights, and witnesses
would not need to be present to testify against the accused. Funding for all components
of national security cases would have to be estimated by the Congressional Budget
Office, and then be included as part of the national defense budget. Counsel would be
provided at no cost to the defendant from a pool of full time national security attorneys
who have security clearance (Goldsmith & Katyal, 2007). Defense attorneys would
62
specialize in these types of cases, as well as have experience taking translated statements.
Accused terrorists would be eligible to access outside counsel if they could afford such
counsel, and they would have the right to appeal their holding and verdicts to an appellate
court. Part of the legislation that creates this court would allow for detention even after
the sentence was served (Goldsmith & Katyal, 2007). While this sounds unjust,
preventive detention has happened before in cases of medical quarantine and the mentally
insane. Individuals would be reviewed prior to release and must be determined to have
no recidivism risk. This could prevent individuals from recidivating, if they are believed
to be at high-risk for doing so.
The location of the NSC would be in Guantanamo Bay, Cuba. Using
Guantanamo keeps terrorism detainees away from Americans, and reduces the risks for
new terrorist attacks. Guantanamo Bay security is provided by the military, whereas
hosting terror trials in the United States would place security into the hands of law
enforcement. Law enforcement is capable of the task, but it is not cost effective. Using
Guantanmo keeps terrorism detainees away from Americans, and reduces the risk for
new terrorist attacks. Of course to conduct trials outside of the United States would
require transportation and lodging for all courtroom officials. Necessities such as these
would be provided by the government, and officials would be returned to the United
States after the closing of each trial. This would raise costs but it is still expected to be
much less than the proposed Manhattan trial of Khalid Sheik Mohammed.
It is understood that the implementation of such a policy would still leave some to
question whether this court has offered the fullest protections for those accused of
63
terrorism (Eviatar, 2008). Internationally, nations may still not believe that it provides
the full protections found in the Bill of Rights. However, the creation of such a court
does expand rights for the accused, and may possibly create a compromise with
international partners that respect the United States’ rights to prosecute suspected
terrorists in a trial that is fairer than military tribunals. In doing so, this may satisfy the
wishes of other and maintain strong international alliances.
The creation of a national security court blends the federal court and military
tribunal systems together as one system. Congress would be the authoritative body,
rather than the executive branch, and Congress would have oversight to ensure that the
system is fair for the accused. Furthermore, Congress would have the authority to
intervene in cases if it is believed that major mistakes or violations are occurring. In
addition to including Congressional oversight, appellate judges could review cases to
ensure proper legal procedure is followed and that guilty verdicts are found fairly.
Policy Monitoring
The final step of Patton and Sawicki’s policy analysis in six steps is to monitor
the recommended policy. Analysis has determined that at this time, military tribunals
should be the judicial system used to prosecute terrorists. Currently it is not possible to
monitor this policy because military tribunals have been suspended. If resumed,
responsible policy making requires that the policy is monitored for accountability to its
objectives since occasionally policies are not as successful as they were expected to be.
The decision for tribunals over federal trials for suspected terrorists places costs and
national security over the opinion of the international community. Snubbing the
64
international community in favor of an ineffective policy is not wise decision making.
Therefore, if the policy does not effectively meet its objectives, it must be altered or
replaced.
Monitoring the effectiveness of this policy could be done by tabulating costs of
tribunals and holding the system accountable for successful trial verdicts. Since tribunals
are expected to be the best judicial system for terrorism cases, costs should be low, and
there should not be many cases changed by appeals. In theory, suspects who are guilty
should rarely be found innocent, and guilty verdicts should rarely be reversed. Appeals
could easily be reviewed by policy makers. If it is found that cases are being overturned
at a high or growing rate, this needs to be addressed. Lastly tribunals are expected to
keep national security secrets confidential. If secrets are being exposed this would be
another policy shortcoming. Any of these discussed scenarios would undermine the
effectiveness of the decision to use tribunals.
After implementation, if it is found that tribunals are operating as intended, then
the analysis is sound. However if tribunals have minor flaws, the flaws can be addressed
by minor tweaks. On the other hand, if it is found that the tribunal system has major
unintended flaws that damage its effectiveness, a new policy must be recommended.
This could either be the creation of a type of national security court or the federal court
system.
Discussion
The evaluations within this analysis are significant. Evaluation has indicated that
the use of federal trials for terrorism prosecution might potentially be a poor policy. The
65
use of this policy will more than likely have major, negative consequences. While
federal trials would improve our standing with the international community, costs would
rise and the safety of the United States and its citizens could possibly be exposed to
greater risks. The financial costs of switching from tribunals to federal courts would be
significant. Federal trials are expected to be billions of dollars more than military
tribunals because of the heavy security needs.
In addition to high costs, the decision to not use tribunals would grant terrorists
the full protections of the Bill of Rights. These protections might jeopardize future
intelligence and military anti-terrorism operations, and create difficulties for successful
case building. All terrorists captured prior to the decision to use federal courts have been
arrested using military procedure. Evidence that was not gathered in accordance with law
enforcement procedure could be dismissed by the judge. In addition, all evidence that is
used in the case would be open for media coverage. Sensitive information could fall into
the hands of terrorists, while anti-terrorism operations are still being conducted around
the globe. The release of this information will give enemies an understanding of how the
military counters terrorism and what methods they utilize. Furthermore, the use of
federal courts for prosecution of terrorists would require the military to adopt law
enforcement procedures for future arrests and evidence collection. The military is not
suited to follow such procedure. Instead it operates in accordance with the Geneva
Conventions, which hold the military accountable to fight lawfully, yet do not hinder its
effectiveness.
The use of federal trials for terrorists would also place the lives and safety of
66
innocent Americans at risk. Hosting federal trials would require the transfer of
Guantanamo inmates into the United States. This would drive up costs required for the
extra security needed to prevent terrorist attacks. In the event that the security failed,
serious implications could occur. Not only would failed security likely result in the death
of innocent lives, but the trial would be put on hold, United States anti-terror policy
would be undermined, and Americans’ fear would rise to 9/11 levels.
These are all consequences that cannot be allowed to take place. While the
intentions of a federal trial are noble, the reality of the situation requires that policy
makers closely examine what they are intending to achieve. Analysis has determined that
federal courts are not an effective system for the prosecution of war criminals. Instead
these prosecutions should take place in military tribunals, which have been used
successfully in the past to prosecute war criminals.
67
Chapter 5
CONCLUSION
Overview
September 11th was more than just an attack on the innocent people of the United
States; it demonstrated that the United States was threatened by an enemy unlike any
before. Usually enemies of the United States were other nations or regimes. Terrorists,
on the other hand, are combatants who are non-state actors and are equally as lethal as a
nation. They intentionally attack innocent populations and utilize asymmetric strategies
to be successful against conventional forces. September 11th proved how deadly these
attacks can be. In response, President George W. Bush began taking new measures
against the threat of global terrorism. These measures became known as the Bush
Doctrine and included launching two military offensives targeting terrorism abroad.
During these military offensives, the United States began seizing suspected terrorists and
holding them while they awaited trial. Rather than using the federal court system, Bush
and his cabinet selected military tribunals for the prosecution of terrorists. They justified
this decision by holding terrorists accountable for violations of the Geneva Conventions
under the War Crimes Act of 1996. It was felt that tribunals were the better choice
because of previous history using tribunals to prosecute war criminals and because this
method had been used internationally as well. Following the ruling of Hamdan v.
Rumsfeld, the Military Commissions Act was passed. By passing this Act, the United
States officially declared unlawful enemy combatants to be illegal, and congressionally
68
authorized the use of military tribunals for the prosecution of unlawful enemy
combatants.
After the Presidential election of 2008, Barrack Obama, announced that Bush
Doctrine tactics were controversial, and that the United States would shift its policy in the
methods it used to prosecute suspected terrorists. Specifically, Obama wanted to do the
following: provide terrorists the same protections found in the Bill of Rights, close
Guantanamo Bay, and use federal trials instead of tribunals. The decision to use federal
trials over tribunals eliminated the controversy of using the Bush Doctrine methods, but
created new debate about whether the federal court system would be able to effectively
administer justice for foreign individuals held on suspicion of terrorism. This debate
created the focus of this policy analysis. Specifically, what is the impact of transitioning
from military tribunals to federal criminal courts for the prosecution of unlawful enemy
combatants?
Review of Findings
To evaluate the impact, six evaluative criteria were selected which incorporate
important elements of the debate. Each judicial system was analyzed for cost
effectiveness, the application of the Bill of Rights, the role of the media, international
opinion, proximity of detainees to American citizens, and recidivism. Analysis
determined that abandoning tribunals and switching to federal courts for the prosecution
of terrorists would be costly to the United States. This conclusion is derived from four of
the six equally weighted criteria which show tribunals as better suited than the federal
court system to handle these types of cases.
69
The matrix reveals several benefits of tribunals. First, military tribunals are
expected to be billions of dollars less expensive. While it is unfortunate to put a price tag
on trying terrorists, the reality of the differences in cost is enormous and can not be
ignored. Second, tribunals do not provide the accused equal protections found in the Bill
of Rights, but most are respected. The reason for suspending certain rights is to account
for the unique environment in which unlawful enemy combatants are arrested. Terrorists
are arrested by intelligence and military personnel. Their operating procedure does not
follow the same law enforcement procedure that is required to prosecute in federal courts.
Because law enforcement procedure is not used to apprehend suspected terrorists, it may
be difficult to build successful cases against the accused. The suspension of rights in
American justice is taboo, but in this case, it is justified because suspected terrorists are
foreign and presumed to be enemies. Being foreign born they are not entitled to
constitutional safe guards. Third, tribunals restrict media coverage. In court proceedings
this is constitutionally protected, but in cases of national security, there needs to be
limitations on what the press is free to report to the public. The last benefit of tribunals is
that detainees can be kept outside of the United States, reducing the abilities of terrorists
to disrupt trials by attacking the trial itself or its officials. This also helps to keep public
fear low.
While these are all found to be beneficial, tribunals do have some downsides. Not
all international partners agree on the use of tribunals. Many nations expect the United
States to uphold its constitutional protections to all tried for crimes against the state. The
use of tribunals would prevent these constitutional protections from being applied. It
70
would be very beneficial to have the full support of international partners, but this alone
cannot outweigh the other benefits found by the use of tribunals. Successful prosecution
of accused terrorists is more critical to the national security of the United States than
having some international opinions not approve of military tribunals. Lastly, tribunals
are no more effective than federal trials at preventing terrorists from recidivating. These
last two points reveal that tribunals are not a flawless policy. Therefore other options
should be explored.
The creation of a national security court could be an option that would help to
bridge the two different systems together as one. In theory it would attempt to increase
the fairness of trials while still protecting the confidentiality of military actions and
promoting the security of the United States. Congress would have oversight to ensure
that all rules and procedure are properly followed, and appellate courts could review
cases to ensure that verdicts were determined fairly. Perhaps this attempt to compromise
would be accepted by the international community, and help to maintain strong
partnerships and alliances. The final goal of this court is to reduce the ability for
terrorists to recidivate. All detainees would be reviewed prior to release. If it was
believed that they posed a threat to once again commit terrorist acts, they would be
preventatively held until they were determined to be low risk.
Lastly, sound policy analysis calls for the monitoring of the recommended policy.
All policies recommended for implementation should be monitored, tribunals are no
exception. It is important that tribunals are effective as planned. If not, they either need
to be successfully improved or replaced by another system.
71
Implications for Practice
Research could greatly increase our ability to create a national security court. It
would be necessary to explore what it would cost, how it would operate, and who would
have its oversight. Furthermore an understanding about how the United States would
prosecute presumed terrorists fairly in such a court while maintaining its own national
security interests would need to be fully understood. The main focus of this research
would be to focus on the feasibility of such a court, whether it was practical to
implement, and if it would be able to improve upon our current court systems.
Research Implications
This analysis of how the United States should prosecute suspected terrorists
captured in the GWOT is one model for comparison. The six evaluative criteria were
selected because it is believed that they provide critical focal points for analysis.
However, there may be other evaluative criteria that could be used to enhance the
findings. Further examination should look to expand the evaluative criteria used to
compare these two policies. In doing so, an improved evaluation in the abilities of each
judicial system might be better understood for their abilities to prosecute suspected
terrorists. Potentially an expanded policy analysis might alter the outcome of which
policy is recommended for implementation.
72
REFERENCES
Addicot, J. (2006). The Military Commissions Act: Congress Commits to the War on
Terror. Pittsburgh, PA: University of Pittsburgh Law School. Retrieved
December 29, 2009, from http://jurist.law.pitt.edu/forumy/2006/10/militarycommissions-act-congress.php
American Center for Law and Justice. (2002). American Center for Law and Justice
Memo- Incarceration of al-Qaeda “Dirty Bomb” Suspect. Washington, DC:
Author. Retrieved November 22, 2009, from
http://www.aclj.org/Issues/Resources/Document.aspx?ID=138
American Law and Legal Information. (2010). Tokyo Trial- Further Reading.
Pittsburgh, PA: Author. Retrieved January 18, 2010, from
http://law.jrank.org/pages/10812/Tokyo-Trial.html
Associated Press. (2010, February, 8). Obama Hasn’t Ruled out NY Trial for KSM.
Retrieved May 5, 2010, from http://www.military.com/news/article/obama-hasntruled-out-ny-trial-for-ksm.html?ESRC=topstories.RSS
Austin. (2006). The Nuremberg Trials: The Defendants and Verdicts. Retrieved January,
12, 2010, from http://frank.mtsu.edu/~baustin/trials3.html
Banusiewicz, J. D. (2004, July, 14). Yemeni Detainee to Face Military Commission.
Armed Forces Press Service. Retrieved December 28,
2009, from http://www.defense.gov/news/Jul2004/
Barnett, L. (2008). Extraordinary Rendition: International Law and the Prohibition of
73
Torture. Parliamentary Information and Research Service. Retrieved February
12, 2010, from http://www2.parl.gc.ca/Content/LOP/ResearchPublications/
prb0748-e.pdf
Barno, D. W. (2006). Challenges in a Global Insurgency. Parameters, 36(2), 15-29.
Retrieved February 3, 2010, from http://www.carlisle.army.mil/usawc/
Parameters/06summer/barno.htm
Benjamin, S. (2006). Slobodan Milosevic Found Dead in Cell. CBS News.
Retrieved February, 2, 2010, from http://www.cbsnews.com/stories/2006/03/11/
world/main1391629.shtml
Bowker, D. & Kaye, D. (2007, November, 10). Guantánamo by the Numbers. New York
Times. Retrieved May 4, 2010 from http://www.nytimes.com/2007/11/10/opinion
/10kayeintro.html?_r=1&ref=opinion
Brager, B. (2007). Adolf Eichmann. Retrieved January 29, 2010, from
http://www.militaryhistoryonline.com/wwii/articles/adolfeichmann.aspx
Carruthers, P. (2010). Sentencing Trends: Analysis and Recommendations. Minneapolis,
MN: Council on Crime and Justice. Retrieved March 8, 2010, from
http://www.crimeandjustice.org/councilinfo.cfm?pID=51
CBC News. (2009). Guantanamo Bay History. Retrieved February 8, 2010, from
http://www.cbc.ca/world/story/2009/01/22/f-gitmo.html
CBC News. (2001). Milosevic’s Arrest ends Tense Standoff. Retrieved February 1,
2010, from http://www.cbc.ca/world/story/2001/03/31/milosevic
_arrest01331.html
74
Cesarani, D. (2005, November, 11). Adolf Eichmann: The War of a Criminal. BBC
News. Retrieved January 14, 2010 from http://www.bbc.co.uk/history/
worldwars/genocide/eichmann_01.shtml#six
Clausewitz, C. V. (1873). On War. London: N. Trübner & Company
CNN. (1999). NATO Bombs Yugoslavia as Troop Withdrawal Talks Break off.
Retrieved January 30, 2010, from http://www.cnn.com/WORLD/europe/
9906/07/kosovo.03/
CNN. (2009, January, 22). Obama Signs Order to Close Guantanamo Bay Facility.
Retrieved May 5, 2010, from http://www.cnn.com/2009/POLITICS/01/22/
guantanamo.order/index.html
Congressional Budget Office. (2006). H.R. 6054 Military Commissions Act of 2006.
Washington, DC. Retrieved March 1, 2010, from http://cbo.gov/ftpdocs/
75xx/doc7566/hr6054.pdf
Cornell Legal Information Institute. (n.d.). Eighth Amendment: Further Guarantees in
Criminal Cases. Ithaca, New York: Author. Retrieved March 4, 2010, from
http://www.law.cornell.edu/anncon/html/amdt8_user.html
Cornell Legal Information Institute. (n.d.). Fifth Amendment: Rights of Persons. Cornell
University. Ithaca, New York: Author. Retrieved March 3, 2010, from
http://www.law.cornell.edu/anncon/html/amdt5bfrag4_user.html
Cornell Legal Information Institute. (n.d.). Fourteenth Amendment: Rights Guaranteed
75
Privileges and Immunities of Citizenship, Due Process and Equal Protection.
Ithaca, New York: Author. Retrieved March 4, 2010, from
http://www.law.cornell.edu/anncon/html/amdt14a_user.html
Cornell Legal Information Institute. (n.d.). Fourth Amendment: Search and Seizure.
Cornell University. Ithaca, New York: Author. Retrieved March 3, 2010, from
http://www.law.cornell.edu/anncon/html/amdt4frag1_user.html#amdt4_hd4
Cornell Legal Information Institute. (n.d.). Title 10 Chapter 47, Section 948. Cornell
University. Ithaca, New York: Author. Retrieved February 6, 2010, from
http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000948--a000-.html
Cornell Legal Information Institute. (n.d.). Sixth Amendment: Rights of Accused in
Criminal Prosecutions. Ithaca, New York: Author. Retrieved March 4, 2010,
from http://www.law.cornell.edu/anncon/html/amdt6frag1_user.html#amdt6_hd4
Cornell Legal Information Institute. (n.d.). U.S. Code: Title 18 Section 2441. War
Crimes. Cornell University. Ithaca, New York: Author. Retrieved December 2,
2009, from
http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002441---000-.html
de Vries, L. (2005). Italy Orders CIA Agent Arrests. CBS News. Retrieved January
29, 2010, from http://www.cbsnews.com/stories/2005/06/24/world/
main703982.shtml
Elsea, J. K. (2005). Detainees at Guantanamo Bay. Congressional Research Service.
76
Retrieved January 5, 2010, from http://www.fas.org/sgp/crs/natsec/RS22173.pdf
Elsea, J. K. (2004). Detention of American Citizens as Enemy Combatants.
Congressional Research Service. Retrieved September 18, 2009, from
http://www.fas.org/irp/crs/RL31724.pdf
Elsea, J. K. & Thomas, K. (2006). Enemy Combatant Detainees: Habeas Corpus
Challenges in Federal Court. Congressional Research Service. Retrieved
September 26, 2009, from http://www.law.umaryland.edu/marshall/crsreports/
crsdocuments/ RL33180_09262006.pdf
Encyclopedia Britannica. (2009). Slobodan Milosevic. Retrieved February 2, 2010, from
http://www.britannica.com/EBchecked/topic/383076/Slobodan-Milosevic
Eviatar, D. (2008, November, 20). Gitmo Prisoners Pose Thorny Problem for Obama.
The Washington Independent. Retrieved March 8, 2010, from
http://washingtonindependent.com/19390/national-security-courts
Fisher, L. (2002). Military Tribunals: The Quirin Precedent. Congressional Research
Service. Retrieved November 5, 2009, from
http://www.fas.org/irp/crs/RL31340.pdf
Flynn, S. (2007). The Defense Will Not Rest. Davis, CA: Center for the Study of Human
Rights in America. Retrieved March 2, 2010, from http://humanrights. ucdavis.
edu/ projects/the-guantanamo-testimonials-project/testimonies/testimomies-oflawyers/the-defense-will-not-rest/
Fox News. (2010, January, 6). Bloomberg Says Security for Terror Trial to Cost $216
77
Million. Associated Press. Retrieved February 10, 2010, from
http://www.foxnews.com/politics/2010/01/06/ bloomberg-says-security-terrortrial-cost-million/
Fox News. (2006). Mixed Reactions over the Death of Milosevic. Associated Press.
Retrieved February 1, 2010, from http://www.foxnews.com/story/0,2933,187
556,00.html
Gannon, K. (2010, March, 4). Former Gitmo Detainee said Running Afghan Battles.
San Jose Mercury News. Retrieved March 8, 2010, from
http://www.mercurynews.com/nation-world/ci_14510564
Garamone, J. (2006, October, 17). Bush says Military Commissions Act will Bring
Justice. American Forces Press Service. Retrieved December 27, 2009, from
http://www.defense.gov/News/NewsArticle.aspx?id=1633.
Garcia, M. J. (2009). The War Crimes Act: Current Issues. Congressional Research
Service. Retrieved November 16, 2009, from http://www.fas.org/sgp/crs
/intel/RL 33662.pdf
Goldsmith, J. L. & Katyal, N. (2007, July, 11). The Terrorists’ Court. New York Times.
Retrieved March 8, 2010, from http://www.nytimes.com/2007/07/11/ opinion/
11katyal.html?_r=2
Greenberg, K. J. (2007). 8 Reasons to Close Guantanamo Now. Retrieved March 5,
2010, from http://www.inthesetimes.com/article/3024/8_reasons_to_
close_guantanamo_now/
Greene, R. A. (2006). Analysis: Military Tribunals. BBC News. Retrieved March 6,
78
2010, from http://news.bbc.co.uk/2/hi/americas/1701789.stm
Greenhouse, L. (2006, June, 29). Supreme Court Blocks Guantanamo Tribunals. New
York Times. Retrieved December 27, 2009, from http://www.nytimes.com/2006
/06/29/washington/29cnd-scotus.html?_r=4
Harper, K. (2010, May, 21). President Obama: ‘America will be Safer When
Guantanamo Bay is Closed’. San Francisco Examiner. Retrieved February 3,
2010, from http://www.examiner.com/examiner/x-5890-ObamaAdministration-Examiner~y2009m5d21-President-Obama--America-will-besafer-when-Guantanamo-Bay-is-closed
Harrer, P. & Phinney, K. (2006). Nuremberg Trials: Judgment. Retrieved January, 13,
2010, from http://www.history.ucsb.edu/faculty/marcuse/classes/33d/
projects/nurembg/NuremJudgement.htm
Heinl, R. D. (1962, February). How we got Guantanamo. American Heritage Magazine,
13. Retrieved February 8, 2010, from http://www.americanheritage.com/articles/
magazine/ah/1962/2/1962_2_18.shtml
International Bar Association. (2008). Burundi: The Media on Trial. London: Author.
Retrieved March 5, 2010, from http://74.6.146.127/search/cache?ei=UTF8&p=international+bar+association+media+and+trials&fr=yfp-t701&u=www.ibanet.org/Document/Default.aspx%3FDocumentUid%3D656A962
5-CD17-480E-8313 440D1EA107AA&w=international+bar+association+
media+medium+trials+trial&d=PEzspO_EUds4&icp=1&.intl=us&sig=OzSl22tvr
bfxCRIsTPq.8g--
79
International Committee of the Red Cross. (2010). The Geneva Conventions of 1949.
Geneva, Switzerland: Author. Retrieved October 24, 2009, from
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions
James, R. (2009, May, 18). Military Commissions. Time. Retrieved December 8,
2009, from http://www.time.com/time/nation/article/0,8599,1899131,00.html
Jervis, R. (2003). Understanding the Bush Doctrine. Political Science Quarterly, 118(3),
365-388. Retrieved September 22, 2009, from http://www.psqonline.org/99_
article.php3?byear=2003&bmonth=fall&a=01 free
Krauthammer, Charles. (2009, November, 18). Charles Krauthammer: New
York’s Spectacular Trial. Orange County Register. Retrieved March 4, 2010,
from http://www.ocregister.com/articles/trial-220342-ksm-holder.html
Krik, M. (Executive Producer). (2003, February, 20). Frontline. [Television Broadcast].
Boston MA: PBS.
Left, S. (2002). Milosevic War Crimes Trial Begins. The Guardian. Retrieved February
1, 2010, from http://www.guardian.co.uk/world/2002/feb/12/warcrimes.
milosevictrial1europe/9906/07/kosovo.03/
Lillian Goldman Law Library. (2008). Nuremberg Trial Proceedings Vol. 1
London Agreement of August 8th 1945. New Haven, CT: Author. Retrieved
December 16, 2009, from http://avalon.law.yale.edu/imt/imtchart.asp
Lillian Goldman Law Library. (2008). The Laws of War. New Haven, CT: Author.
Retrieved October 24, 2010, from http://avalon.law.yale.edu/subject_
menus/lawwar.asp
80
Linder, D. (2000). The Nuremberg Trials. Retrieved January, 13, 2010, from
http://jurist.law.pitt.edu/famoustrials/nuremberg.php
Lisiciotto, C. (2007). The Trial of Adolf Eichmann. Retrieved January 14, 2010, from
http://www.holocaustresearchproject.org/trials/eichmanntrial.html
Long, D. E. (2008). Countering Asymmetrical Warfare in the 21st Century: A Grand
Strategic Vision. Strategic Insights, 7(3). Retrieved February 4, 2010, from
http://www.nps.edu/Academics/centers/ccc/publications/OnlineJournal/2008/Jul/l
ongJul08.html
Makinen, G. (2002). The Economic Effects of 9/11: A Retrospective Assessment.
Congressional Research Service. Retrieved January 13, 2010, from
http://www.fas.org/irp/crs/RL31617.pdf
Meek, J. G. (2009, November, 13). 9/11 Plotter Khalid Sheikh Mohammed, 4 other
Gitmo Detainees will Stand Trial in NY: Obama Official. New York Daily News.
Retrieved February 10, 2010, from http://www.nydailynews.com/news
/ny_crime/2009/11/13/2009-11-13_911_plotter_khalid_sheikh_mohammed_4_
other_gitmo_detainees_will_stand_trial_in_n.html
Metz, S. & Johnson II, D. V. (2001). Asymmetry and US Military Strategy: Definition,
Background, and Strategic Concepts. Retrieved December 22, 2009, from
http://www.strategicstudiesinstitute.army.mil/pdffiles/PUB223.pdf
Michaelson, S. & Shershow, S. C. (2004). Beyond and Before the Law at Guantanamo.
Peace Review, 16(3), 293-303. Retrieved September 28, 2009, from
81
http://web.ebscohost.com.proxy.lib.csus.edu/ehost/pdf?vid=4&hid=12&sid=c95e
39b4-752d-4fb7-91a5-600aeda4e856%40sessionmgr14
Moltchanova, A. (2005). Stateless National Groups, International Justice and
Asymmetrical Warfare. [Electronic Version]. The Journal of Political
Philosophy, 13(2), 194-215.
Moynihan, P. (2002). The Rise of Asymmetrical Warfare. Retrieved February 15, 2010,
from http://cc.bingj.com/cache.aspx?q=rise+of+asymmetrical+warfare+
moynihan&d =4915199308862618&mkt=en-US&setlang=enUS&w=86f941bd,66a69ab8
National Archives and Records Administration. (2010). The President. Washington,
DC: US Government Printing Office. Retrieved February 2, 2010, from
http://edocket.access.gpo.gov/2009/pdf/E9-1885.pdf
National Archives and Records Administration. (2010). The Ronald Reagan Presidential
Library. Washington, DC: US Government Printing Office. Retrieved May 4,
2010, from http://www.reagan.utexas.edu/archives/speeches/1987/012987B.HTM
New York Times. (2001, July, 4). Milosevic Brings air of Scorn to Tribunal. Retrieved
January, 30, 2010, from http://www.nytimes.com/2001/07/04/world/milosevicbrings-air-of-scorn-to-tribunal.html?pagewanted=1
O’ Connor, T. (2009). International Terrorism as Asymmetric Warfare. Retrieved
January 15, 2010, from http://www.apsu.edu/oconnort/3420/3420lect02.htm
Oliphant, J. (2008, June, 13). Court Backs Gitmo Detainees. Chicago Tribune.
Retrieved January 5, 2010, from http://www.swamppolitics.com/news/politics/
82
blog/2008/06/court_sides_with_gitmo_detaine.html
Ostrow, M. (Director). (1994). America and the Holocaust [Motion picture]. United
States: PBS
Parsons, C. (2009, November, 14). Illinois the next Gitmo? Chicago Tribune. Retrieved
March 6, 2010, from http://articles.chicagotribune.com/2009-1114/news/0911130509_1_thomson-correctional-center-guantanamo-detaineesfederal-prison
Patton, C. V. & Sawicki, D. S. (1993). Basic Methods of Policy Analysis and Planning.
Upper Saddle River, NJ: Prentice Hall
PBS. (2003). Chronology: The Evolution of the Bush Doctrine. Retrieved September 22,
2009, from http://www.pbs.org/wgbh/pages/frontline/shows/iraq/etc/cron.html
PBS. (1999). Milosevic Indicted. Retrieved January 30, 2010, from
http://www.pbs.org/newshour/bb/europe/jan-june99/warcrimes_5-27.html
Pfanner, T. (2005). Asymmetrical Warfare from the Perspective of Humanitarian Law
and Humanitarian Action. [Electronic version]. International Review of the Red
Cross, 87(857), 149-174.
Ravindran, P. (2006, January, 14). Rendition for Dawood Ibrahim? The Hindu Business
Line. Retrieved January 16, 2010, from http://www.thehindubusinessline.com
/2006/01/14 /stories/2006011401631000.htm
Rhem, K. T. (2005). Guantanamo Troops Deployed in Unusual Surroundings. Armed
Forces Press Services. Retrieved February 26, 2010, from
http://www.defense.gov/news/newsarticle.aspx?id=25798
83
Roosevelt, K. (2008). Why Guantanamo? Pittsburgh, PA: University of Pittsburgh Law
School. Retrieved February 8, 2010, from http://jurist.law.pitt.edu/forumy
/2006/10/why-guantanamo.php
Ross, B. & Rhee, J. (2009). Terrorists Beat the System in Federal Prisons. ABC News.
Retrieved March 6, 2010, from http://abcnews.go.com/Blotter/terrorists-federalprisons/story?id=9346833&page=1
Sahadi, J. (2010). America’s Hidden Debt Bombs. CNN Money. Retrieved February 28,
2010, from http://money.cnn.com/2010/03/01/news/economy/budget
_debt/index.htm
Savage, C. (2010, January, 22). Detainees will Still be Held but not Tried, Official Says.
The New York Times. Retrieved March 11, 2010, from http://www.nytimes.com/
2010/01/22/us/22gitmo.html
Seva, J. (2002). Military Tribunals and the War Against Terrorism: an Interview with
Frank Moran. Retrieved March 5, 2010, from http://philosophy.csusb.edu/
~tmoody/F07%20362%20tribunals%20Moran.html
Smart, V. (2009). Adolf Eichmann, His Escape and Capture in Argentina. Retrieved
January 27, 2010, from http://www.holocaustresearchproject.org/trials/
eichmanntrialcapture.html
Smith, J. R. (2006, July, 28). Detainee Abuse Charges Feared [Electronic Version]. The
Washington Post, A01.
Tapper, J., Crawford-Greenburg, J. & Khan, H. (2009, January, 22). Obama Order to
Shut Gitmo, CIA Detention Centers. ABC News. Retrieved May 5, 2010, from
84
http://abcnews.go.com/Politics/LawPolitics/story?id=6707095&page=1
Tapper, J. & Travers, K. (2009). White House: Guantanamo Detainees will be Sent to
Illinois Prison. ABC News. Retrieved February 8, 2010, from
http://abcnews.go.com/Politics/obama-white-house-announces-transferguantanamo-detainees-illinois/story?id=9342554
Taylor, S. (2007, February). The Case for a National Security Court. The Atlantic.
Retrieved March 8, 2010, from http://www.theatlantic.com/magazine/archive
/2007/02/the-case-for-a- national-security-court/5717/
The Sun. (2009). Obama Calls for End to 9/11 Trials. Retrieved October 13, 2009, from
http://www.thesun.co.uk/sol/homepage/news/article2155274.ece
Thomas, P., De Vogue, A. & Ryan, J. (2009). Five 9/11 Suspects to Face Trials in US
Federal Court. ABC News. Retrieved February 10, 2010, from
http://abcnews.go.com/Politics/911-suspects-including-khalid-sheikhmohammed-york/story?id=9072922
Time. (1960, June, 13). Israel: Justice on Trial. Time Magazine. Retrieved January 15,
2010, from http://www.time.com/time/magazine/article/0,9171,940573,00.html
Time. (1948, December, 20). War Crimes: For Posterity. Time Magazine. Retrieved
January 21, 2010 from http://www.time.com/time/magazine/article/0,9171,
799528,00.html?iid= digg_share
United States Holocaust Memorial Museum. (2010). International Military Tribunal at
Nuremberg. Washington, DC: Author. Retrieved January 6, 2010 from,
http://www.ushmm.org/wlc/en/article.php?ModuleId=10007069
85
United States Holocaust Memorial Museum. (2010). War Crimes Trials. Washington,
DC: Author. Retrieved January 12, 2010, from,
http://www.ushmm.org/wlc/en/article.php?ModuleId=10005140
US Courts. (2007). Federal Rules of Criminal Procedure. Washington, DC: The Federal
Judiciary. Retrieved March 4, 2010, from http://www.uscourts.gov/rules/crim
2007.pdf
US Courts. (1950). Johnson v. Eisentrager 339 U.S. 763. Washington, DC: The Federal
Judiciary. Retrieved November 8, 2009, from http://www.uscourts.gov/outreach/
topics/habeascorpus_casestudy.htm
US Department of Justice. (2002). Application of Treaties and Laws to al Qaeda and
Taliban Detainees. Washington, DC: Office of Legal Counsel. Retrieved
October 24, 2009, from http://www.justice.gov/olc/docs/memo-laws-talibandetainees.pdf
US Supreme Court. (2007). Boumediene Et al v Bush, President of the United States, Et
al. Washington, DC. Retrieved February 2, 2010, from
http://www.scotusblog.com/ wp-content/uploads/2008/06/06-1195.pdf
Wall Street Journal. (2009, November, 14). KSM Hits Manhattan Again. Wall Street
Journal. Retrieved March 1, 2010, from http://online.wsj.com/article/SB10001
424052748703683804574533622533459520.html
Washington Post. (2010). The U.S. Congress Votes Database. Retrieved January 3,
2010, from http://projects.washingtonpost.com/congress/107/house/1/votes/342/
Washington Post. (2010). The U.S. Congress Votes Database. Retrieved January 3,
86
2010, from http://projects.washingtonpost.com/congress/107/senate/1/votes/281/
Wesserle, A. R. (1981). Allied War Crimes Trials. The Journal for Historical Review,
2(2), 155. Retrieved January, 18, 2010, from http://www.ihr.org/jhr
/v02/v02p155_Wesserle.html
Whitehouse Archives. (2006). National Strategy for Combating Terrorism. Retrieved
October 16, 2009, from http://georgewbush whitehouse.archives.gov/ nsc/ nsct/
2006/nsct2006.pdf
Whitehouse. (2006). Fact Sheet: The Administration’s Legislation to Create Military
Commissions. Washington DC. Retrieved March 2, 2010, from
http://georgewbush-whitehouse.archives.gov/news/releases/2006/09/200609066.html
Wickham, DeWayne. (2002, May, 22). History, Race must be Factored into Cuban
Equation. USA Today. Retrieved March 7, 2010, from
http://www.usatoday.com/news/opinion/columnists/wickham/2002-05-21wickham.htm
Woolley, J. T. & Peters, G. (2010). American Presidency Project- Executive Order
13491. UC Santa Barbara. Retrieved February 6, 2010, from
http://www.presidency.ucsb.edu/ws/index.php?pid=85669
Woolley, J. T. & Peters, G. (2010). American Presidency Project- Executive Order
13492. UC Santa Barbara. Retrieved February 6, 2010, from
http://www.presidency.ucsb.edu/ws/index.php?pid=85670
Woolley, J. T. & Peters, G. (2010). American Presidency Project- Executive Order
87
13493. UC Santa Barbara. Retrieved February 6, 2010, from
http://www.presidency.ucsb.edu/ws/index.php?pid=85671
Yungher, N. I. (2007). Terrorism: The Bottom Line. Upper Saddle River: Prentice Hall.
88
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