A Bleak House in Cuba: A Call For Reform and The Closure of Guantanamo

A BLEAK HOUSE IN CUBA: A CALL FOR REFORM AND
THE CLOSURE OF GUANTANAMO 1

By: Sara Elizabeth Dill, Esq. and
Lindsey Stearns, Georgetown University Law Center, J.D. Candidate 2016
BIOGRAPHICAL:
Sara Elizabeth Dill is an attorney practicing international law, criminal defense,
and immigration in Miami, Florida and London, England. She has litigated cases
involving transnational offenses, war crimes, terrorism, human rights, and civil
liberties. She is a frequent author and lecturer on these and related issues. She
currently serves as a human rights and legal observer at Guantanamo.
Lindsey Stearns is a third year law student at Georgetown University Law
Center focusing on criminal law, human rights, and national security. She
attended hearings at Guantanamo Bay in September 2015 as an nongovernmental observer.
ABSTRACT:
This article addresses the military commissions and detention facility at
Guantanamo Bay, Cuba, the resulting controversy over human rights violations
and denial of due process in the prosecution of accused terrorists. While
discussing the historical problems which plagued the facility, the authors note
where improvements have been made and recommend a path for closing
Guantanamo and prosecuting future cases.
KEY WORDS:
Guantanamo, due process, international law, human rights, torture, criminal
procedure, military law, armed conflict, terrorism, right to counsel, trials.
Bleak House was the ninth novel of Charles Dickens. The novel was published
in instalments from March 1852 through September 1853. It contained an
insistent indictment of the English court system, plagued by corruption, denial of
rights, and trials that languished for years.
1
INTERNATIONAL BAR ASSOCIATION, LEGAL CHALLENGES OF MODERN WARFARE, THE HAGUE, JANUARY 2016
FORWARD BY SARA ELIZABETH DILL

The morning of September 11, 2001 is the twenty-first century
equivalent of the Kennedy Assassination. We all remember exactly where
we were when the news broke that the first tower had been hit. As I write
these words and recall that entire day, and friends of mine who perished in
New York, tears still fill my eyes and emotion fills my heart. For years I
travelled to New York on September 11, to pay tribute to those I lost. I can
still feel the pit in my stomach as the plane would approach LaGuardia,
and those on board fell silent remembering those who never landed on that
fateful day. Every American wanted to see those responsible brought to
justice. But as time went on, and I observed the United States response,
from the Patriot Act to the detention facility and military commission
formed at Guantanamo to try accused terrorists, my training and
experience as a lawyer and human rights advocate forced me to view these
events through a different lens.
I write this so that you, the reader, understand that my work to
close Guantanamo does not come from a detached or unaffected
perspective. It comes from someone who lost loved ones, who has close
friends and family who serve in the military and experience first-hand the
attacks on military personnel by al-Qaeda and other forces. Yet this article
is also written by someone who cares about justice, about protecting
human rights, and in preserving the foundations that this nation was built
upon, through promoting and protecting the rule of law and our adherence
to it, without exception, so that any prosecution is deemed legitimate.
Following trips to Guantanamo Bay as a human rights observer,
and meetings with defense counsel and prosecutors, I concluded that what
occurred was far from anything remotely resembling justice, and that as
lawyers, we have a professional duty and a moral responsibility to not only
vocalize our concerns, but to act. We must cooperatively develop solutions
ones which may not fully please all parties, but which allow us to move
forward, to learn from the mistakes of the past, and to ensure that the
future is one of due process, justice, and the protection of human rights.
Prior to reading this article, take a moment of silence, for the
victims of September 11, 2001, for the victims in Beirut and Paris in 2015,
and for all the victims of violence and terrorism around the world over the
last two decades. But also take a moment of silence for those who suffered
in secrecy at the hands of the United States government, who were held
captive for years, tortured, and later cleared of any wrong doing yet
remained in captivity, and those still being denied their rights under
international and United States law. It is time to close Guantanamo and
end a dark chapter in American history while we begin to write a brighter
one.
2
INTRODUCTION
When men are about to commit, or sanction the commission of
some injustice, it is not uncommon for them to express pity for the
object either of that or some parallel proceeding, and to feel
themselves, at the time, quite virtuous and moral, and immensely
superior to those who express no pity at all.
-
Charles Dickens, Nicholas Nickleby
Guantanamo Bay, Cuba will likely be one of the most horrific

human rights situations of the twenty-first century. It is an example of
how a world power can violate human rights, without significant
repercussions or limitations from the international community, all in the
name of fighting the war on terror. But should the mere use of the word
terrorism take cases outside the normal criminal justice process? If so,
should the United States create a permanent tribunal within the existing
criminal justice system to handle these specialized cases? Or are our
current systems, laws, and procedures adequate to allow for prosecution
that complies with principles of due process? Moreover, does the notion of a
global war on terror relieve a state of its duties and responsibilities under
international law?
Following the attacks of September 11, 2001, the United States was
in a state of panic, needing to address issues and fears it had not faced in
hundreds of years. The shock of an attack on United States soil led to
debates about the applicability of treaties, the Constitution, laws, and
rights when faced with the need to protect the homeland. Americans
declared a war on terror that would reach all corners of the earth.
On October 7, 2001, the United States began a mission to destroy alQaeda, targeting missile fire on Taliban military facilities, military
training camps, and other targeted locations. An extensive military
campaign ensued as the use of cluster bombs and other forms of warfare
caused large-scale death and destruction. Upon the capture of Kabul and
other places in Afghanistan, many were allowed to surrender, but they
were misled as to the terms of surrender.
The treatment of these men has led to an outcry by human rights
groups. Many of the first detainees brought to Guantanamo were men who
had surrendered, former Afghan and Pakistani Taliban fighters, but there
were also numerous stories of aid workers, religious workers, or ordinary
businessmen who were caught up in a chaotic western style round-up that
was ill-organized and failed to follow rules or procedures in the handling or
3
capture of suspected terrorists. Much of this was a result of the United

States paying large sums of money, or bounties, to those who provided
information leading to the capture of alleged terrorists. In some instances,
the men captured had been turned in by rival businessmen, seeking to
gain an advantage. These innocent men would spend the next six or more
years at Guantanamo, eventually cleared of any wrongdoing.
Unfortunately, to date, many of those who have been cleared for release
still remain. Others have been returned to countries where they face
torture or persecution, calling into question whether the United States has
violated the non-refoulement provisions of international law.
Once the United States military forces captured the hundreds of
individuals from Afghanistan, Pakistan, and other areas, they swiftly set
up a detention center at Guantanamo Bay, Cuba. The plans as to how to
handle, treat, interrogate, and, eventually, charge these individuals was
reactive at best, disorganized at most junctures, and showed the
disconnect between administration officials and those experts who
expressed concerns as to how the United States should proceed. Initial
interrogations led to large amounts of dubious evidence, hearsay, and
inaccurate accounts and portrayals of who exactly the forces had captured.
Atrocities occurred in the months prior to the opening of Guantanamo,
including summary executions, unlawful detentions, torture, mass killings,
starvation, and abuse of the prisoners, namely those captured in
Afghanistan from October to December 2001.
Once Guantanamo officially opened, detainees were subjected to
inhumane treatment, torture, force feedings, sexual abuse, withholding of
basic human needs, endured violations of religious freedom, and denied
access to courts and counsel. While this article will not address those
atrocities in depth, primarily due to the extensive library of publications
that exist on the topic, they are important to keep in mind as a backdrop to
what would occur over the next fourteen years at Guantanamo, and lend
further support to the notion that terrorism prosecutions should be
brought within the confines of the existing criminal justice system.
I.
A TALE OF TWO JUSTICE SYSTEMS: BUILDING THE MOST EXPENSIVE

PRISON AND COURT IN THE WORLD
Facing the problem of where to detain captured members of alQaeda and how to criminally prosecute accused terrorists, Department of
Defense and administration officials brainstormed ideas. The solution
reached was to create a Military Commission, a specialized ad hoc tribunal
at Guantanamo, tasked with prosecuting those being held. However, this
4
Commission operated outside of any structure or existing court system,

and failed to have clear provisions or laws regarding bond, detention,
speedy trial rights or access to counsel. The United States, in determining
how to prosecute those responsible, chose to disregard Geneva Conventions
and established rules of war; instead holding men not as criminals or
prisoners of war, but as illegal enemy combatants a category of
prisoner which is only recognized by the White House and the Pentagon.
The Commission would soon be plagued with allegations of due process
violations, notable inefficiencies, and dismal results.
The international community defines a special or extraordinary
court as one that tries people on the basis of a special legal status or
particular categories of offenses, 2 or tribunals that lack certain guarantees
of independence and impartiality. 3 Military commissions are wartime
tribunals that try captured enemies accused of violating the laws and
customs of war. 4 The subject matter jurisdiction of a military commission
extends to violations of the laws and customs of war; yet its personal
jurisdiction reaches only enemy fighters. 5
The modern-day military tribunal evolved out of the Instructions
for the Government of Armies of the United States in the Field, 6
promulgated by the Department of War in 1863 and named the Lieber
Code after its author, Columbia University Professor Francis Lieber. The
Lieber Code delineated the laws of war and definitively granted military
commissions subject matter and in personam jurisdiction to try violations
of the laws of war. 7 By World War II, the military commissions became a
congressionally enacted Article I trial forum, existing in times of armed
conflict. 8 In the aftermath of World War II, the international community
2 David S. Weissbrodt and Joseph C. Hansen, The Right to a Fair Trial in an
Extraordinary Court, in Guantanamo and Beyond: Exceptional Courts and
Military Commissions in Comparative Perspective, Fionnuala N Aolin & Oren
Gross, eds. (New York: Cambridge University Press 2013). Citing Amnesty
International, Fair Trials Manual 151 (1998).
3 Cf. Laura A. Dickenson, Using Legal Process to Fight Terrorism: Detentions,
Military Commissions, International Tribunals, and the Rule of Law, 75 S. Cal. L.
Rev. 1407, 1422 (2002) (stating that a military commission run by members of the
military without any recourse to a civilian judicial body cannot satisfy the
requirement of independence).
4 David Glazier, The Development of an Exceptional Court: The History of the
American Military Commission, in Guantnamo and Beyond: Exceptional Courts
and Military Commissions in Comparative Perspective, Fionnuala N Aolin &
Oren Gross, eds. (New York: Cambridge University Press, 2013).
5 Gary D. Solis, Contemporary Law of War and Military Commissions, in
Guantnamo and Beyond: Exceptional Courts and Military Commissions in

Comparative Perspective, Fionnuala N Aolin & Oren Gross, eds. (New York:
Cambridge University Press, 2013).

6 Available at http://avalon.law.yale.edu/19th_century/lieber.asp
7 Gideon M. Hart, Military Commissions and the Lieber Code: Toward a New
Understanding of the Jurisdictional Foundations of Military Commissions, 203
Mil. L. Rev. 1, 3 (2010).
5
took steps to standardize the human rights afforded to prisoners of war

and avoid some of the prosecutorial abuses that took place in post-World
War II military tribunals. Common Article 3 of the 1949 Geneva
Conventions 9 requires a state to provide captured fighters with fair trials.
The conventions provide significant restrictions on the ways that persons
designated as prisoners of war are tried, specifically that a tribunal must
follow the same procedures it would in prosecuting members of the armed
forces of the capturing state. 10
Military commissions have historically served as an efficient
method of providing war criminals with fair trials. As long as armed
conflicts persist, there will likely be military commissions in one form or
another. Their misuse, however, negates both their moral legitimacy and
legal utility. 11
Guantanamo Bay Naval Base is a 45 square mile section of land and
water on the southeastern end of Cuba. The United States leases the land
for $4,085 a month as a coaling and naval station as part of the CubanAmerican Treaty of 1903. 12 The issue as to the governing law of
Guantanamo Bay is anything but simple. Through the treaty signed
between Cuba and the United States in 1903 and reaffirmed in 1934, 13 the
U.S. recognized Cubas ultimate sovereignty over the forty-five square
mile enclave in Oriente Province near the islands southeast end. In
exchange, Cuba yielded the United States complete jurisdiction and
control through a perpetual lease that can be voided only by mutual
agreement. 14 Since the Cuban Revolution in the 1950s, the Cuban

9 Available at http://www.geneva-academy.ch/RULAC/pdf/Common-Article-3.pdf
101949 Geneva Convention (III) Relative to the Treatment of Prisoners of War, available
at
http://cil.nus.edu.sg/rp/il/pdf/1949%20Geneva%20Convention%20(III)%20Relative%20to%
20the%20Treatment%20of%20Prisoners%20of%20War-pdf.pdf (Article 84: A prisoner of
war shall be tried only by a military court, unless the existing laws of the Detaining
Power expressly permit the civil courts to try a member of the armed forces of the
Detaining Power in respect of the particular offence alleged to have been committed by
the prisoner of war. In no circumstances whatever shall a prisoner of war be tried by a
court of any kind which does not offer the essential guarantees of independence and
impartiality as generally recognized, and, in particular, the procedure of which does not
afford the accused the rights and means of defence provided for in Article 105.)


12 Available at http://avalon.law.yale.edu/20th_century/dip_cuba002.asp
13 Available at http://avalon.law.yale.edu/20th_century/dip_cuba001.asp
14Agreement Between the United States and Cuba for the Lease of Lands for Coaling and
Naval stations; February 23, 1903. Accessed 15 November 2015. Available at
http://avalon.law.yale.edu/20th_century/dip_cuba002.asp See also Rothman, Lily. Why
6
government has consistently protested American presence on Cuban soil,

and reportedly refused to cash any of the rent checks paid by the United
States. Close to 6,000 service members and civilian contractors inhabit
Guantanamo Bay Naval Base, with amenities such as state-of-the-art gym
facilities, elementary schools, suburban neighborhoods, sprawling beaches,
an outdoor movie theater, ice-cream parlor, and Radio GTMO, Rockin In
Fidels Backyard. 15
Beyond what looks like a small American town, circa 1982, 16 the
edges of the base are the camps, crudely-built concrete and barbed wire
detention facilities for the hundreds of people who have been detained at
Guantanamo Bay since 2002. The worlds most expensive court is encased
in what appears to be more of a trailer park than a judicial complex,
surrounded by chain link and barbed wire fencing, under the close watch of
armed military guards. Nearby is the tent city where observers and media
are housed, with separate tents for sleeping, showering, and toilets. Within
the courthouse is a split room for hearings, notably equipped with
extensive technology and modern furnishings. A stark contrast to what one
observes outside. Observers are not allowed into the detention centers
themselves, yet accusations of misuse of solitary confinement, sensory
deprivation, sleep deprivation, physical attacks, abuse of psychologically ill
detainees, force-feeding, and religious abuse within the camps remain
frequent. 17
The United States purposely chose this location for the military
commissions. On November 13, 2001, President Bush issued an executive
order asserting authority to use military commissions to try individual
terrorism suspects captured by the United States. 18 Aside from the
obvious benefits from the availability of space at Guantanamo Bay, the
initial reason the detainees were kept at this desolate base is because it is
not located within the borders of the United States itself. This is important
because although aliens detained in the United States are afforded certain
constitutional rights, the impression of the Bush administration at the
the United States Controls Guantanamo Bay. Time Magazine. 22 January 2015.
Accessed 15 November 2015. Available at http://time.com/3672066/guantanamo-bayhistory/
15 Vice News, Want a Fidel Castro Bobblehead? Better Get to Guantanamo Bay
Fast. Published 7 May 2015, Last Accessed 11 January 2016, available at
https://news.vice.com/article/want-a-fidel-castro-bobblehead-better-get-toguantanamo-bay-fast
16 Janet Reitman, Rolling Stone, Inside Gitmo: Americas Shame. Published 30
December
2015,
Accessed
11
January
2016,
Available
at
http://www.rollingstone.com/politics/news/inside-gitmo-americas-shame-20151230
17 Amnesty International, Current Conditions at Guantanamo Bay, published 21
March 2009, last accessed 14 January 2016, available at
http://www.amnesty.org.au/hrs/comments/20595/.
18 Military Order of November 13, 2001Detention, Treatment, and Trial of
Certain Noncitizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13,
2001).
7
time was that there were fewer or no rights for those detained outside the
United States, 19 or as they described it, the legal equivalent of outer
space. 20 The Administration argued that the laws of the United States
did not and could not apply there because the prisoners were being held on
Cuban, not American, soil. Guantanamo was simply an American military
base in a foreign country, and the prisoners had no right of access to the
American justice system. 21
The Administration declined to refer to the detainees as prisoners
of war. As mentioned earlier, referring to the detainees as POWs would
mean that they would fall under the 1949 Prisoners of War convention,
requiring that be tried by the same court-martial procedures that apply to
American service members, as opposed to the more fluid and often
arbitrary rules that govern a specially-formed military commission.
Following backlash for the lack of protections and the gross
deviations from the American and international justice systems as
outlined in the November 2001 executive order, the Department of Defense
issued regulations in 2002 that provided additional procedural protections
for the accused, such as providing defendants with appointed military
counsel and the opportunity to hire outside civilian counsel, procedures
that appear legitimate on paper but in reality and practice are difficult to
implement. 22
Until 2004, the administration argued that Guantnamo detainees
could not invoke the protections of the federal habeas corpus statute
because they were foreign nationals detained outside the sovereign
territory of the United States. In Rasul v. Bush, the Supreme Court
rejected this argument. 23 The Supreme Court again addressed the
shortcomings of the Military Commissions in 2006 in Hamdan v.
Rumsfeld, 24 stating that the commissions lacked the power to proceed
because its structures and procedures violated both the Uniform Code of
Military Justice and the Geneva Conventions. 25 Following this, Congress
passed the Military Commissions Act of 2006, 26 creating the term
19Zittler, Jay M. Rights of Alien Detainees Held Outside the United States as to Their
Treatment and Conditions of Detainment, 6 A.L.R. Fed. 2d 185 (Originally published in
2005). Available on Westlaw.
20 Janet Reitman, Rolling Stone, supra note 24.
21 Rapley, Robert. Witch Hunts: From Salem to Guantanamo Bay. Montreal &
Kingston: McGill-Queens University Press, 2007. p. 237.
22 Department of Defense, Military Commission Order No. 1, March 21, 2002. Last
Accessed
January
11,
2016,
Available
at
http://biotech.law.lsu.edu/blaw/dodd/corres/mco/mco1.pdf.
23 Jonathan Hafetz, The Guantanamo Effect and Some Troubling Implications of
Limiting Habeas Rights Domestically, 10 N.Y. City L. Rev. 351, 352 (2007).
24 548 U.S. 557 (2006).
25 Id. at 560.
26 Available
at
https://www.gpo.gov/fdsys/pkg/BILLS-109s3930enr/pdf/BILLS109s3930enr.pdf.
unlawful enemy combatants and ensuring the detainees would be

provided little to no legal protections whatsoever.
The treatment of prisoners at Guantanamo Bay led to public outcry
throughout the world. The use of torture or enhanced interrogation
techniques to extract information, the inhumane conditions at the bases
infamous Camp X-Ray, and the denial of basic legal rights to the detainees
became a source of shame for the American people and a source of outrage
from allies abroad, drawing comparisons to the Japanese internment
camps, 27 leading Amnesty International to label the facility as the gulag
of our times, 28 New York Times writer Thomas Friedman to brand it the
anti-Statue of Liberty, 29 and President Barack Obama to label it a
recruitment brochure for our enemies. 30
As of January 2016, the number of detainees decreased from the
originally reported seven hundred seventy-four to only slightly over one
hundred detainees, a large majority of whom have never been charged
with an offense. President Obama stated numerous times that he intends
to close the Military Commissions at Guantanamo Bay, 31 announcing the
drafting of a plan to close the prison and transfer the detainees, 32 and
sending officials to Colorado to examine alternative locations to house the
prisoners. 33 With only one year left, the administration has yet to do so.
27Marc
D. Falkoff, Litigation and Delay at Guantnamo Bay, 10 N.Y. City L. Rev. 393,
396 (2007).
28 Amnesty International. Amnesty International Annual Report 2005. Forward by Irene
Khan, Secretary General, Amnesty International. p. i. Accessed on 15 November 2015.
Available at https://www.amnesty.org/en/documents/pol10/0001/2005/en/ (The detention
facility at Guantanamo Bay has become the gulag of our times. entrenching the practice
of arbitrary and indefinite detention in violation of international law. Trials by military
commissions have made a mockery of justice and due process.)
29Friedman, Thomas L., Just Shut It Down, The New York Times, 27 May 2005.
Accessed
15
November
2015.
Available
at
http://www.nytimes.com/2005/05/27/opinion/just-shut-it-down.html.
30 President Barack Obama, 2016 State of the Union Address, 12 January 2016,
Available
at
http://www.cnn.com/2016/01/12/politics/state-of-the-union-2016transcript-full-text/.
31 See, e.g. Executive Order, Closure of Guantanamo Detention Facilities,
published
22
January
2009,
available
at
https://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFaci
lities. See also State of the Union Address, 28 January 2014, available at
https://www.whitehouse.gov/the-press-office/2014/01/28/president-barack-obamasstate-union-address, see also Remarks of President Barack Obama at National
Defense University, 23 May 2013, available at https://www.whitehouse.gov/thepress-office/2013/05/23/remarks-president-barack-obama.
32 Time Magazine, Plans to Close Guantanamo Bay Prison in the Works,
published 22 July 2015, last accessed 14 January 2016, available at
http://time.com/3968292/guantanamo-bay-close-obama/
33 New York Times, U.S. Studies Moving Guantanamo Detainees to Colorado
Prison, published 2 October 2015, accessed 14 January 2016, available at
http://www.nytimes.com/2015/10/03/us/us-studies-moving-guantanamo-detaineesto-colorado-prison.html?_r=0.
9
Instead, they brought forth the Military Commissions Act of 2009, 34 which
provided minimal reforms to the commission such as changing the term
unlawful enemy combatants to unlawful enemy belligerents, banning
evidence obtained by torture, and limiting the use of hearsay evidence in
courts.
To date, the military commissions differ greatly from military
commissions of the past. Where past commissions simply claimed
jurisdiction over war crimes, espionage, and sabotage, the commissions at
Guantanamo Bay tried detainees for attenuated actions such as serving as
accountants for Al-Qaeda, or as a bodyguard or driver for Osama Bin
Laden. 35 For reference, Adolf Hitlers accountant, driver and bodyguard
were not charged at the end of World War II. In addition to the increase in
the types of offenses charged under the commission, the military
commissions limited the types of counsel afforded to the detainees.
Military tribunals of the past have allowed detainees to have outside
counsel represent them. For example, at the Nuremburg Trials, Nazis
charged with war crimes were allowed to have German lawyers defend
them at trial. However, at Guantanamo Bay, the detainees are limited to
American counsel, the large majority of whom are appointed military
judge-advocates or Department of Defense attorneys. The detainees are
only provided with outside counsel when they are able to pay for outside
counsel or receive an offer for pro bono representation, both of which are
extremely rare and subject to Department of Defense approval and the
issuance of a top level security clearance.
The United States has arguably one of the most effective and robust
criminal justice systems in the world, with a proven record of fairness and
the ability to efficiently investigate, detain, and prosecute those accused of
committing armed terrorist offenses against the United States, or
conspiring to do so. Specific statutes exist within our criminal law system
with which to charge suspected terrorists. Maximum-security facilities
currently detain, without incident, those accused of or convicted of
terrorism.
It is thus puzzling why the United States walked away from this
tried-and-true system and instead attempted to reinvent the wheel.
Congress continues to add provisions to the NDAA preventing the closure
of Guantanamo, detainees cleared for release remain in detention, and
court cases continue to languish on without hopes of a trial until at least
34
35
Available at http://www.mc.mil/portals/0/mca20pub20law200920.pdf
Gary D. Solis, Contemporary Law of War and Military Commissions, in

Cambridge University Press, 2013). (Office of Military Commissions, Charge

Sheet U.S. v. Ibrahim Ahmed Mahomoud al Qosi (Feb. 8, 2006), retrieved from
http://www.defense.gov/ news/d20080305-alqosicharges.pdf.
10
2020. The War on Terror is more likely than not going to continue for
decades to come. While we all hope there is not another attack similar to
September 11, the Boston Marathon bombing and the recent ISIS attacks
in Paris, Beirut, and San Bernardino remind us that this may not be the
case. How, then, do we prepare to deal with prosecuting an enemy who can
often be nameless and faceless and lacks affiliation with a sovereign
territory? How do we take the mistakes at Guantanamo Bay and turn
them into lessons for the future?
II.
A LEGITIMATE ENDEAVOR PURSUED

PROSECUTING TERRORISM OFFENSES.
BY
ILLEGITIMATE MEANS:
In a word, I was too cowardly to do what I knew to be right, as I

had been too cowardly to avoid doing what I knew to be wrong.
-- Charles Dickens, Great Expectations
The criminal prosecution of terrorists is not a new phenomenon, nor

is the most recent decade the only time that this issue has been debated. A
1986 article examined the American use of law when dealing with issues of
terrorism:
Americans are particularly attracted to the law as a means
for repressing violence, and are committed domestically and
internationally to using law to control criminal conduct and
to resolve disputes. They invoke the law almost
instinctively, and repeatedly, assuming that it regulates
international conduct and, in particular, provides a system
for bringing terrorists to justice. 36
In examining the usefulness or success of the law in cases of terrorism,

[i]n the area of terrorism, however, the law has failed to punish and deter
those who use violence to advance their political goals. 37 Perhaps, then,
the lens through which we examine how to proceed in this arena needs a
slightly different focus than we traditionally have used in making policy
and procedure decisions.
Certainly a nation has priorities in prosecuting those who commit
terrorist acts against a nations citizens. It is undisputed that these
36 Sofaer, Abraham. Terrorism and the Law. Council on Foreign Relations. Foreign
Affairs. (Summer 1986).
37
Id.
11
interests also include the ability to prevent such attacks from occurring in
the future. This perhaps is where the biggest distinction lies between
terrorism investigations and those involving the standard criminal
offenses. While law enforcement frequently will use undercover agents to
infiltrate organized crime groups and narcotics distribution rings, this is
generally for the purpose of dismantling the operation and ending criminal
activity. In the terrorism arena, the focus shifts to preventing attacks and
saving lives, with perpetrators operating primarily overseas but with
United States connections. The gravity of the offenses is often beyond
anything we encounter in our day-to-day criminal justice systems,
reaching violence similar to that encountered on the battlefield, yet
committed against innocent, non-military civilians. These distinctions lead
to discussions that terrorism should be treated differently, applying a
definite set of rules and procedures. The question is, do we follow
international laws governing armed conflict, domestic laws within the
criminal justice system, or is a blended approach more appropriate?
One of the most prolific arguments involves the interests of national
security, on-going investigations, and need for prolonged or specialized
systems of detention. The need to protect classified information is also of
paramount importance. It is with these special interests in mind that we
must develop a system that strikes a balance between the competing
interests of due process and the rights of a criminal defendant against the
need of a nation to protect its citizens and hold responsible those who
commit large-scale terrorist attacks.
A. DETERMINING WHICH NORMS OF INTERNATIONAL LAW
APPLY
The international community has set forth basic rights of the
accused to be informed of the charges against them, 38 to be tried without
undue delay, 39 to defend himself through legal assistance of his own
choosing, 40 to communicate with counsel of his choosing, 41 and to have
adequate time and facilities to prepare for his defense. 42 The Third
Geneva Convention further guarantees a list of trial rights available to
prisoners of war, 43 and the rights afforded to counsel representing a
38 United Nations, International Covenant on Civil and Political Rights, Article
14,
Section
3
(a).
Available
at
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
39 Id. at Section 3 (c).
40 Id at 3(d).
41 Id. at 3(b).
42 Id.
43 https://www.icrc.org/ihl.nsf/INTRO/375?OpenDocument
12
prisoner of war. 44 In situations of international armed conflict, the Third

Geneva Convention states that a prisoner of war can be validly sentenced
only if the sentence has been pronounced by the same courts according to
the same procedure as in the case of members of the armed forces of the
Detaining Power, and if, furthermore, the provisions of the present
Chapter have been observed. 45 Additional Protocol I further guarantees
that a person may not be found guilty of an offense related to an armed
conflict except pursuant to a conviction pronounced by an impartial and
regularly constituted court respecting the generally recognized principles
of regular judicial procedure. 46
The initial inquiry and threshold, before we can even ascertain
which system is best equipped to prosecute terrorism offenses, is whether
these cases and individuals fall under war crimes or violations of
international humanitarian law, or whether these are simply violations of
a nations criminal laws. The United States has frequently argued on both
sides of the issue, depending on whether the outcome best supports the
actions taken or policy position. Perhaps it is true that acts of terrorism
require a new or blended approach, looking at both international law
governing armed conflicts, as well as human rights treaties and domestic
criminal laws. However, this is still a situation of criminal justice, and
there must be some level of predictability and stability, so as to avoid
problems of ex post facto laws or violations of individual rights, two of the
most notable problems found in the military commissions at Guantanamo.
1. Norms of International Law and Armed Conflict

In an armed conflict, international humanitarian law (IHL) and
international human rights law (IHR) are complementary, not mutually
exclusive. States have a duty to apply both bodies of law to achieve the
greatest possible protection for the rights of the accused. Both combatants
and civilians are entitled to the protections provided for in the Geneva
Conventions. Acts of terrorism committed outside an armed conflict are to
be treated as criminal, requiring law enforcement responses in line with
1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War,
available
at
http://cil.nus.edu.sg/rp/il/pdf/1949%20Geneva%20Convention%20(III)%20Relative
%20to%20the%20Treatment%20of%20Prisoners%20of%20War-pdf.pdf (Article 105:
[Counsel] may, in particular, freely visit the accused and interview him in
private. He may also confer with any witnesses for the defence, including
prisoners of war. He shall have the benefit of these facilities until the term of
appeal or petition has expired.)
45 Id. at Art. 102.
46 Protocol Additional to the Geneva Conventions of 12 August 1949, art. 75, June
8, 1977, 1125 U.N.T.S.
44
13
international human rights standards. Simply because the United States

chose to respond to criminal acts of terrorism with military force does not
automatically transform the situation into an armed conflict.
The 1899 Hague Convention began codifying laws mandating the
humane treatment of prisoners. 47 The Third Geneva Convention forbids
ill-treatment and torture of prisoners of war. 48 Article 75 of the First
Additional Protocol reiterates that all captured insurgents, regardless of
their status, are to be treated humanely in accordance with the minimum
rights found in Common Article 3. This is true even if individuals have
committed grave breaches of the Conventions or Protocols. Thus, multiple
international sources of law address, at least to some extent, the issues
and questions that arose following the September 11 attacks.
The norms of both human rights law and international
humanitarian law apply during armed conflicts. In many cases, IHL may
serve as lex specialis, providing more specific standards by which to
conduct analysis. However, in cases involving alleged abuses by State
agents that do not occur in the context of hostilities, human rights norms
alone should apply.
International armed conflicts (armed conflicts between two or more
States) are covered by the four Geneva Conventions of 1949 and their First
Additional Protocol of 1977. Non-international armed conflicts (armed
conflicts between a State and an organized non-State armed group or
between two or more such groups in a States territory) are covered by
Common Article 3 of the Geneva Conventions and the Second Additional
Protocol. Under certain conditions, custom and general principles of law
may apply. All regimes of human rights protection must be interpreted and
applied in an integral way within the applicable rules of international law
in order to afford individuals with the most favorable standards of
protection. The Rule of Lenity, in which laws should be construed in favor
of the defendant, should also apply in these circumstances.
The Martens Clause, developed by German jurist Georg Friedrich
von Martens, states, [i]n cases not covered by international agreements,
civilians and combatants remain under the protection and authority of the
principles on international law derived from established custom, from the
principles of humanity, and from the dictates of public conscience. 49IHL
also contains general humane treatment guarantees. Articles 13 and 14 of
Hague Convention No. IV Respecting the Laws and Customs of War on Land.
Entered into Force, 26 January 1910.
48 Geneva Convention (No. III) Relative to the Treatment of Prisons of War.
Entered into force 21 October 1950. Protocol Additional (No. I) to the Geneva
Conventions of August 12, 1949. Entered into force 7 December 1948. The United
States has not accepted the First Optional Protocol, but it is typically viewed as
customary international law.
49 Preamble to the 1907 Hague Convention IV and reaffirmed in the 1977
Additional Protocol I.
47
14
the Third Geneva Convention guarantee the general right to humane

treatment for prisoners of war. Common Article 3 and corresponding
prohibitions of torture constitute norms of customary international law.
Under both IHR and IHL, the most egregious violations of humane
treatment protections give rise not only to state responsibility, but also
individual criminal responsibility on the part of the perpetrator and his or
her superiors. For Guantanamo, however, there has only been one
prosecution, showing the refusal of the United States to police its own.
It was frequently asserted that terrorists are automatically
unlawful or enemy combatants and hence not entitled to protections as
true prisoners of war. Yet, under the Bush Administrations approach, they
also are not entitled to the legal protections afforded criminals. Under the
Third Geneva Convention of 1949, prisoners of war cannot be interrogated
as one would proceed with a criminal suspect. Rather, they are required to
provide only surname, first names and rank, date of birth, and army,
regimental, personal or serial number. In fact, [n]o physical or mental
torture, nor any other form of coercion, may be inflicted on prisoners of war
to secure from them information of any kind whatsoever. However, the
United States defines its War on Terror as a battlefield that includes the
whole world and a conflict which has an indefinite time frame. The
implication of incapacitation as a rationale for preventative detention is
staggering. This is then further compounded if detainees are not provided
with access to counsel or the opportunity for judicial review or oversight.
One of the biggest controversies to come out of Guantanamo is the
detention of armed groups, and whether the United States can only detain
those directly participating in hostilities and must treat the rest as
civilians. The direct participation in hostilities standard is taken from
two additional protocols to the Geneva Conventions that the United States
has not ratified. 50 While the government has frequently asserted that law
of war principles do not limit the United States detention authority to a
limited category of individuals, this is simply misplaced. Article 4 of the
Third Geneva Convention defines categories of persons entitled to prisoner
of war status and how they are to be treated in an international armed
conflict. 51
See Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug.

1949 and Relating to the Protection of Victims of International Armed Conflicts
(Additional Protocol I), art. 51(3), 1125 U.N.T.S. 3 (Civilians shall enjoy the
protection afforded by this Section unless and for such time as they take a direct
part in hostilities.); Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 Aug. 1949 and relating to the Protection of Victims of NonInternational Armed Conflicts (Additional Protocol II), art. 13(3), 1125 U.N.T.S.
609.
51 See Third Geneva Convention, art. 2, 4.
50
15
2. Specific
Terrorism
Provisions
Pertaining to Prosecuting
Thirteen international treaties and numerous regional treaties

criminalize specific acts of terrorism. However, none of these treaties
indicate that the human rights of detainees or concerns regarding the rule
of law should be disregarded simply because terrorism is involved.
According to the UN General Assembly Resolution, 60/1:
We recognize that international cooperation to fight
terrorism must be conducted in conformity with
international law, including the Charter and relevant
international conventions and protocols. States must ensure
that any measures taken to combat terrorism comply with
their obligations under international law, in particular
human rights law, refugee law, and international
humanitarian law. 52
Thus, while international law applies to these situations, states do have

sovereign rights to prosecute those who commit crimes against them.
Additional support for the use of domestic criminal courts as the primary
vehicle to prosecute terrorists may be found in the creation of the
International Criminal Court (hereinafter ICC). The ICCs jurisdiction is
complementary, not compulsory; emphasizing that domestic courts will
have primary jurisdiction. 53
Terrorist acts are frequently committed during times of peace,
resulting in disagreement as to which laws apply, and what protections are
afforded to those accused of committing such acts. While the commission of
such an act may lead to armed conflict, on September 11, 2001, the United
States was not formally engaged in armed conflict with al-Qaeda,
Afghanistan, or Pakistan. This provides the first problem in applying
international humanitarian law to terrorist acts. Additionally, not all acts
of war constitute acts of terrorism, and vice-a-versa. To blur these lines
could potentially allow for immunity for terrorists, or at least prolonged
litigation as the parties would have to litigate under IHL, rather than a
nations domestic criminal laws.
Following the change in administration in 2008, the United States
abandoned the Bush administration concept of war on terror, and now
considers itself in an armed conflict without geographical boundaries
2005 World Summit Outcome (24 October 2005), PP. 85.
See Intl Crim. Ct., Complementarity, Res. RC/Res.1, pmbl. Para. 3, paras. 1-2
(June 8, 2010), available at
http://www.icc=cpi.int/icedocs/asp_docs/Resolutions/RC-Res.1-ENG.pdf. Last
accessed April 30, 2014 .
52
53
16
against al-Qaeda, the Taliban, ISIS/ISIL, and associated forces. Under

current policy, international humanitarian law is the controlling body of
law as to the conduct of hostilities and the protection of war victims.
However, many international entities and scholars do not consider the
global war against terrorism to constitute an armed conflict for the
purpose of the applicability of international humanitarian law. One
position is that the situation in Afghanistan from 7 October 2001 until
June 2001 is an international armed conflict; however, after this period,
the conflict became non-international in nature.
B.
THE UNITED STATES RESPONSE AND ACTION.
United States authority for its actions following the attacks of

September 11 stemmed from a few sources. First, on September 18, 2001,
Congress hastily passed a special law, the Authorization for Use of
Military Force (hereinafter AUMF), that gave the United States the
authority to detain, and this authority is purportedly informed by the
principles of the law of war. 54 Laws of war include a series of prohibitions
and obligations, developed over time and codified in treaties (Geneva
Conventions) or customary international law. 55
The AUMF authorizes the use of necessary and appropriate military
force against members of an opposing armed force, whether that armed
force is the force of a state or the irregular forces of an armed group like alQaeda. Precedent allows that members of enemy forces can be detained
even if they have not actually committed or attempted to commit any act
of depredation or entered the theatre or zone of active military
operations. 56
Another source of law is the Counterterrorism Detention,
Treatment, and Release Act (CDTRA), whose purpose is to provide for
the prompt incapacitation of those who would engage in catastrophic
armed attack against the United States. The CDTRA is grounded in the
right of states to use force, including detention, in self-defense against
armed attack. However, the same problems and questions remain: How do
we identify those who should be subject to detention? And under what
standard of review? How do we review these determinations? History has
Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).

Hamdan v. Rumsfeld, 548 U.S. 557, 603-604 (2006).
56 Ex parte Quirin , 317 U.S. at 38; Khalid v. Bush , 355 F. Supp. 2d 311, 320 (D.
D.C. 2005); see also Geneva Convention (III) Relative to the Treatment of
54
55
Prisoners of War of Aug. 12, 1949, art. 4, 6 U.S.T.S. 3316 (contemplating detention
of members of state armed forces and militias without making a distinction as to
whether they have engaged in combat).
17
shown that the commissions and tribunals at Guantanamo failed to do

this.
The enemy combatant label led to an ad hoc system of preventive
detention where individuals are detained against their will without the
filing of criminal charges for the purposes of incapacitation and
interrogation. The problem that arose is that of indefinite detention under
United States law, given the executive usurpation of power with no
legislative involvement. Detainees were not entitled to judicial review
before being subjected to prolonged preventive incapacitation, the
euphemism for being detained at Guantanamo. According to the AUMF
and subsequent laws and policies, the executive branch alone can resolve
factual disputes and determine whether an individual is an enemy
combatant.
For years, it was asserted that the United States detention of enemy
combatants had to be indefinite because they had no idea of when the
war will end. The rationale for this was the need to incapacitate
suspected terrorists, facilitate interrogation, and hold individuals when
traditional criminal charges are not feasible (although the rationale for
this last point is contrary to the long history of charging terrorists in the
civilian criminal justice system). However, an indefinite war is not a
justification for indefinite detention. In addition to being a violation of
international law, it may in and of itself constitute a form of torture or
inhumane treatment.
The Department of Defense considered most of the individuals held
in custody at Guantanamo Bay to be unprivileged enemy belligerents,
defined as an individual (other than a privileged belligerent) who (A) has
engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the
United States or its coalition partners; or (C) was part of al-Qaeda at the
time of the alleged offense under this chapter. 57
The detention issue plagued and burdened the courts at both
Guantanamo and within the United States. This caused delays in
proceedings, taking attention and focus away from the substantive
offenses. From this litigation, a battle between Congress, the Executive
Branch, and the courts ensued. No sooner would the courts provide
protections, or at least a means for detainees to have their cases and
detention status reviewed, that Congress or the executive would strip
these away. In Rasul v. Bush, 58 the United States Supreme Court held
that foreign nationals held at Guantanamo had a right to challenge their
detentions in federal court with a writ of habeas corpus. Following this
decision, Congress passed the Detainee Treatment Act of 2005 (DTA),
57
58
10 U.S.C. 948a.
542 U.S. 466 (2004).
18
stating that federal courts did not have jurisdiction to hear habeas appeals
challenging detention.
Then, in Hamdan v. Rumsfeld, 59 the Supreme Court said the DTA
only applied prospectively, and did not remove jurisdiction from federal
courts in habeas proceedings pending on that date. In response, Congress
passed the Military Commissions Act of 2006, stating that the DTA
applied to all pending cases. Finally, in Boumedine v. Bush, 60 the United
States Supreme Court held that foreign nationals at Guantanamo have a
right to challenge their detentions in United States civilian courts and that
the Military Commissions Act is unconstitutional to the extent that it
precludes the jurisdiction of federal courts to entertain habeas petitions.
In 2004, the Department of Defense established the Combatant
Status Review Tribunal, in an effort to review whether detainees should
continue to be held, transferred, or released to their home countries. 61 An
enemy combatant means an individual who was part of or supporting
Taliban or al Qaeda forces, or associated forces that are engaged in
hostilities against the United States or its coalition partners. This includes
any person who has committed a belligerent act or has directly supported
hostilities in aid of enemy armed forces. The Act allows for all detainees to
be notified of the opportunity to contest the designation as an enemy
combatant, the opportunity to consult with a personal representative,
and the right to seek habeas corpus in courts of United States.
While certain acts, if committed by a nations armed forces, wearing
uniforms, carrying arms openly, etc. would be acts of war; when it comes to
terrorism, these are private actors that should be subject to the criminal
justice system. We should not view terrorist groups any differently than
violent transnational organized crime groups (drug cartels, mafia, gangs).
Additionally, we must avoid raising terrorist activities to the level of
warfare, as that adds an entirely separate level of litigation that will only
prolong and complicate the proceedings. For example, litigants currently
challenge whether there was an armed conflict, whether that conflict was
internal or international, along with a host of other challenges available
under those provisions. In the domestic criminal law system, these
challenges simply do not exist. Criminal law is designed to reduce, but not
entirely prevent the conduct it prescribes. Does this issue or balance shift
when dealing with terrorism and preventing cataclysmic events or deaths
of thousands of people? These are the questions that we must attempt to
answer when fashioning a system in which to prosecute terrorism offenses
and those who conspire or plan to commit them.
Supra note 23.
553 U.S. 723 (2008).
61 Deputy Secretary of Defense, Memorandum for the Secretary of the Navy, Subject:
Order Establishing Combatant Status Review Tribunal, 7 July 2004.
59
60
19
III.
A FAILED SOLUTION: THE MILITARY COMMISSIONS AT GUANTANAMO.
Experts state that [t]he United States Government set a dangerous

precedent when it passed the Military Commissions Act of 2006 (MCA).
In doing so, it gave another governing body, one that is not required to
adhere to the fundamental rights outlined in the Constitution, jurisdiction
to determine the guilt or innocence of non-citizens suspected of terrorrelated crimes. To ensure this, when a person, citizen or non-citizen, is
charged with any crime, from petty larceny to tax evasion or terrorism,
there can be only one set of rules that govern what rights the defendant is
entitled to. 62 It is with these principles in mind that we must examine
how to proceed with terrorism investigations and prosecutions, to ensure
that we do not run afoul of the rule of law.
A.
HUMAN RIGHTS VIOLATIONS
The words of Charles Dickens from over one-hundred years ago,

following his tours of prisons and an examination of solitary confinement,
ring just as true today when analyzing the conditions at Guantanamo:
I believe that very few men are capable of estimating the
immense amount of torture and agony which this dreadful
punishment, prolonged for years, inflicts upon the sufferers;
and in guessing at it myself, and in reasoning from what I
have seen written upon their faces, and what to my certain
knowledge they feel within, I am only the more convinced
that there is a depth of terrible endurance in which none but
the sufferers themselves can fathom, and which no man has
a right to inflict upon his fellow creature. I hold this slow
and daily tampering with the mysteries of the brain to be
immeasurably worse than any torture of the body; and
because its ghastly signs and tokens are not so palpable to
the eye and sense of touch as scars upon the flesh; because
its wounds are not upon the surface, and it extorts few cries
that human ears can hear; therefore the more I denounce it,
as a secret punishment which slumbering humanity is not
roused up to stay.
Tomm, Christie, Prosecuting Terrorism: Maintaining a United Criminal Justice

System.
JURIST
Dateline,
11
September
2011.
Last
http://jurist.org/dateline/2011/09/christie-tomm-prosecuting-terrorism.php.
62
accessed February 6, 2014.
20
The commission and courts first faced a dilemma regarding whether

to treat individuals as criminals or armed combatants. This led to
extensive litigation about the legality of the detentions, the interrogations,
and the admissibility of evidence. The torture that may detainees endured
had created an additional layer of litigation, both as to whether the
prosecutions can continue, or whether evidence is admissible.
Concern quickly arose that the detainees were at risk of irreparable
harm because the United States refused to treat them as prisoners of war
until a competent tribunal determined otherwise, in accordance with the
Third Geneva Convention of 1949. Any deprivation of liberty must be
carried out in accordance with pre-established law, a detainee must be
informed of the reasons for detention and promptly notified of any charges
against him.
The United States frequently attempted to justify its actions
violating norms of proper prisoner treatment as necessary behaviors for
gathering information and protecting national security in a different kind
of war. In response to claims that prisoners are held at Guantanamo for
indeterminate periods of time and in some cases, past the cessation of
active hostilities, the United States relied on the national security
rationalization, stating we are holding enemy combatants in a global war
on terrorism for security reasons, to prevent them from returning to the
battlefield and injuring American soldiers and civilians and civilians
throughout the world. 63 According to the Department of Defense, the
interrogation of individuals at Guantanamo aided in the production of
more than 4,000 intelligence reports from high legal operatives who
provided information regarding
al-Qaeda
operations,
weapons
64
procurement, leadership, membership, and training. While certainly this
is a valid interest, it is one that can be addressed through the standard
criminal justice system, while still complying with international law and
considerations of due process.
1. Indefinite Detention
The United States obligations under the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) apply to any territory under its jurisdiction. Indefinite
detention is a per se violation of the CAT, even more so when it adversely
impacts the health or psychological condition of the detainees.
Article 118 of the Geneva Convention No. III, U.S. Department of Defense.
Briefing on Detainee Operations at Guantanamo Bay. February 2004.
64 Unclassified JTF-GTMO Information on Detainees. March 4, 2005. U.S.
Department of Defense. Briefing on Detainee Operations at Guantanamo Bay.
Feb. 2004.
63
21
All sides agree that parties to a conflict may capture persons

deemed to pose a serious security threat and detain these persons as long
as they continue to pose a threat. The issue is what requirements must be
met in order to ensure that the detention is not and does not become
arbitrary. Security detentions must be necessary for imperative reasons of
security (directly related to the armed conflict), ordered on permissible
grounds, and there must be some form of review mechanism both initially
and periodically throughout the time the individual is detained to review
and assess the lawfulness of detention. Detention should be an exceptional
measure, and cannot be a disguised alternative to criminal proceedings.
It is likely that the United States had authority to detain some of
the Guantanamo detainees based on their direct participation in
hostilities. However, a significant portion of the 774 detainees were
apprehended outside any armed conflict involving the United States at the
time of their arrest.
The response of the United States has been that [t]he law of war
allows the United Sates and any other country engaged in combat to
hold enemy combatants without charges or access to counsel for the
duration of the hostilities. Detention is not an act of punishment but of
security and military necessity. It serves the purpose of preventing
combatants from continuing to take up arms against the United States. 65
On March 7, 2011, President Obama issued an Executive Order
providing for periodic review of individuals detained at GTMO pursuant to
AUMF. It stated that detainees would only be held if it is necessary to
protect against a significant threat to the security of the United States.
The Order also authorizes detention beyond the scope permitted by the
AUMF standard for detention based purely on risk of whether person is
harmful to the United States, without regard to whether any armed
conflict exists.
Indefinite detention has led to hunger strikes, and the drastic
decision of some detainees to end their lives. Detainees face the
uncertainty of not knowing whether or when they will be tried, if they will
be released and when, or whether they will ever see their families again.
The continuing state of suffering creates fear, stress, depression, and
anxiety, all of which have physiological effects on the cardiovascular and
central nervous systems. Nine prisoners have died in the Guantanamo
facility, some of whom reportedly committed suicide, and twenty-three
65 Response of the United States of America dated October 21, 2005, to inquiry of
the UN Special rapporteurs dated August 8, 2005, Pertaining to Detainees at
Guantanamo, p.3, cited in U.N. Econ. & Soc. Council, Commn on Human Rights,
Situation of detainees at Guantanamo Bay, E/CN.4/2006/120, February 27, 2006,
para. 19.
22
detainees allegedly tried to hang or strangle themselves in a mass protest

in 2003. 66
Detainees captured in connection with the conflict in Afghanistan
should have been charged or released once the active hostilities ceased. To
date, only thirty Guantanamo detainees have been charged, and the
charges against fifteen of the detainees were subsequently dropped.
Detainees who have been cleared for transfer must be afforded an
adequate individualized examination of the factual basis for their transfer
to a particular country before an independent and impartial decisionmaker, with the assistance of conflict free and competent counsel.
No one can be deprived of his liberty without due process of law, and
regardless of status, every person has the non-derogable right to judicial
review of his detention. For a remedy to be valid, it must be truly effective
in establishing whether there has been a violation of human rights and in
providing redress. Nor can judicial remedies be reduced to mere
formalities. While fundamental human rights standards uniformly
indicate that detention must be understood and applied as an exceptional
measure, the standards applied to detainees at Guantanamo clearly shift
the presumption in favor of continued detention and against release.
2. Torture / Enhanced Interrogation Techniques

In a 2009 Senate Armed Services Committee Report, Guantanamo
was described as a battle lab for new interrogation techniques. 67 In a set
of three legal memoranda dated August 2, 2002, known as the Torture
Memos, the Office of Legal Counsel of the U.S. Department of Justice
concluded that the use of enhanced interrogation techniques such as
waterboarding, prolonged sleep deprivation and binding in stress positions,
were lawful. 68 Another memo stated that even if an interrogation method
might violate 2340A, necessity or self-defense could justify it.
The prohibition of torture and cruel, inhuman or degrading
treatment or punishment is absolute and non-derogable. No exceptional
circumstances, including threats of terrorist acts or armed conflict, may
justify acts of torture. Unfortunately, for the past fourteen years, the
United States focused only on the word torture and its meaning, failing
66 The New York Times, 23 Detainees Attempted Suicide in Protest at Base,
Military Says, January 25, 2005.
67 Report of the Committee on Armed Services United States Senate, Inquiry Into
the Treatment of Detainees in U.S. Custody, 110 th Congress, 2 nd Session,
November 20, 2009.
68 Letter to Alberto R. Gonzales, Counsel to the Present, from John C. Yoo, Deputy
Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice,
August 1, 2002.
23
to acknowledge its obligations under the rest of the terms. Thus, even if it
could possibly be accepted that what the United States did was not
torture, it most certainly constituted degrading treatment. The Obama
administration has taken a number of positive steps, stressing the
commitment to Common Article 3, as a minimum baseline for treatment in
detention. However, while explicitly prohibiting abusive techniques, the
revised Army Field Manual may still result in some practices amounting to
violations of CAT.
The acts committed at Guantanamo, whether deemed torture or
enhanced interrogation techniques, were inflicted intentionally by
government officials in order to extract a confession, obtain information, or
punish detainees. This was a source of severe pain or suffering, leading to
the deterioration of the mental and physical health of the detainees.
Physical isolation has largely been the norm, especially for the high level
detainees, including those currently on trial. Solitary confinement
combined with indefinite detention amounts to torture or ill-treatment.
The CIA and DOD designated health professionals to monitor the
use of enhanced interrogation techniques at Guantanamo. A Behavioral
Science Consultation Team (BSCT) provided guidance for interrogators as
to how to best obtain information from detainees. The psychologists were
often present during interrogations and made recommendations based on
information from detainee medical files. 69 An investigation by the ICRC
revealed that doctors and other medical workers were participating in
planning for interrogations, including conveying information about
detainees mental health and vulnerability, in violation of medical ethics. 70
Health professionals have a moral duty to protect the physical and mental
health of detainees and that assessment of detainees health in order to
facilitate punishment or torture is clearly unethical. 71
The majority of investigations by the United States into allegations
of abuse and torture were not prompt, independent, impartial, thorough or
effective. Only one U.S. official was prosecuted before a court-martial, and
none at the federal level. The Department of Justice attorneys who
authored the infamous memo were disciplined, but nothing further. The
DOJ Office of Professional Responsibility issued a report that the legal
analysis was inconsistent with the professional standards applicable to
Department of Justice Attorneys and that the attorneys who wrote the
memos committed professional misconduct when [they] violated [their]
69 The Report of The Constitution Projects Task Force on Detainee Treatment,
The Constitution Project, Washington, D.C., 2013, p. 204.
70 The New York Times, Red Cross Finds Detainee Abuse in Guantanamo,
November 30, 2004.
71 Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted by General Assembly resolution 37/194 of 18 December 1982.
24
duty to exercise independent legal judgment and render thorough,

objective, and candid legal advice. 72 This raises serious concerns about
perpetrators of acts of torture not being held accountable nor given
penalties reflecting the grave nature of their acts as required under
international law.
3. Denial of the Right to Habeas Corpus

The writ of habeas corpus has to remain in effect even during states
of emergency. In 2004 the United States Supreme Court held that federal
courts have jurisdiction to hear habeas petitioner filed by Guantanamo
detainees. 73
Until 2008, the United States did not provide the detainees with an
effective access to an independent court to challenge the legality of their
detention, in violation of IHR. While administrative reviews of the
lawfulness of detention have existed, they were neither independent nor
impartial, thus violating IHL. Following the Boumedine 74 decision,
allowing detainees to challenge their detention in habeas proceedings,
additional questions arose whether habeas even met minimum
international standards. This right cannot be effectively exercised given
the low standard of proof the government needs to meet, the deference of
United States courts to the reason for detention, reluctance of judges to
release individuals associated with terrorism, and the lack of equal access
to classified information. Delays in habeas proceedings also present a
problem, with some cases lasting more than two years. This violates the
prohibition of arbitrary detention and provisions of international law that
require challenges to detention to be determined without delay.
4. Force Feeding
At the peak of the hunger strike in 2013, the number of prisoners
who participated reached 106 (120-130 according to some organizations),
which represented approximately 70% of the population at Guantanamo at
the time. As a result of this, most of the detainees were placed in single cell
72 Department of Justice, Office of Professional Responsibility, Report,

Investigation into the Office of Legal Counsels Memoranda Concerning Issues
Relating to the Central Intelligence Agencys Use of Enhanced Interrogation
Techniques on Suspected Terrorists, July 29, 2009.
73 Rasul v. Bush , 542 U.S. 466 (2004).
74 Supra , note 59.
25
isolation with no human contact and force-fed. One detainee described

force feeding as having a dagger shoved down your throat. 75
Hunger strikes are a well-known form of protest and many of
detainees who participated in the hunger strikes were protesting the
indefinite detention and conditions of confinement. The determination of
DOD officials that all individuals on hunger strikes have suicidal
intentions and therefore must be force-fed is not in line with medical ethics
requirements. States have an obligation to make individualized
assessments as to whether a person has the capacity to voluntarily decide
to refuse food. If that is the case, the right to refuse food should be
respected under both medical ethics and international law. Litigation as to
this issue led to the first temporary ban on force-feeding, and recognition
by a United States federal district court judge that force-feeing is a
painful, humiliating and degrading process. 76
Force-feeding mentally competent hunger strikers contradicts rules
of ethics and the right to health, and amounts to ill-treatment. The forcefeeding process itself is alleged to inflict great pain and suffering,
potentially amounting to cruel and inhuman treatment or torture. The
involvement of medical personnel in this process, as well as in
interrogations, contradicts the standards forbidding medical personal from
taking part in torture, directly or indirectly. Medical personnel have a duty
to document and report signs of abuse or neglect, as well as report when
conditions of detention affect the physical and mental health of detainees.
5. Violation of the Principle of Non-Refoulement

Under IHR and IHL, the principle of non-refoulement prohibits
expelling, returning, or extraditing an individual to another state where
there are substantial grounds for believing that the person would be
subjected to torture or ill-treatment. While the United States has stated
that it will uphold this principle, it has already likely violated its
obligations by forcibly transferring some detainees to states allegedly
practicing torture and ill-treatment. Future transfers of detainees must be
made according to principles of international law.
75 IACHRs Expert Meeting on the situation of detainees held at the U.S. Naval
Base at Guantanamo Bay, Washington, D.C., October 3, 2013. See also, Poems
from Guantanamo, Amnesty International Magazine, Fall 2007, by Mark Falcoff.
76 Jihad Dhiab v. Barack Obama , No. 05-1457 (D.C. Cir. 2013).
26
B.
ASSISTANCE OF COUNSEL
The right to the effective assistance of counsel in criminal

proceedings is firmly rooted in United States jurisprudence since the
foundation of the country and creation of its courts. A long line of Supreme
Court decisions continues to enforce and protect this most precious right.
Yet at Guantanamo, the right to the assistance of counsel has often been
nothing more than a faade.
1. The Hurdles to Forming an Attorney Client Relationship

Guantanamo attorneys face significant challenges in forming a
relationship with their clients, caused by the rules of the commission, the
distance between themselves and their clients, and differences in language
and culture. Pursuant to the Military Commission Act, the accused shall
be represented by military counsel, and may be represented by civilian
counsel if retained by the accused, but only if such civilian counsel:
(A) is a United States citizen;
(B) is admitted to the practice of law in a State, district, or
possession of the United States or before a Federal court;
(C) has not been the subject of any sanction of disciplinary
action by any court, bar, or other competent governmental
authority for relevant misconduct;
(D) has been determined to be eligible for access to classified
information that is classified at the level Secret or higher;
and
(E) has signed a written agreement to comply with all
applicable regulations or instructions for counsel, including
any rules of court for conduct during the proceedings. 77
The Military Commission Act goes on to state that the accused is not
entitled to be represented by more than one military counsel, and the
appointment of additional counsel is completely discretionary. 78 For
reference, the number of people working on the prosecution team for the
military commissions is over one hundred. In the rare case that the
detainee is able to retain civilian counsel, the detailed military counsel
remains on the case as associate counsel. 79
Once an attorney has completed the vetting process to represent a
detainee, including security clearances that take several months, 80 the
77 Military
Commission
Act
of
2006,
949c.
Available
at
https://www.gpo.gov/fdsys/pkg/BILLS-109s3930enr/pdf/BILLS-109s3930enr.pdf
78 Id. at 949c(6).
79 Id. at 949c(3)(E).
27
attorneys are finally approved to meet with their clients. Communications

are only permitted by mail and in-person. Mail between attorneys and the
detainees is inspected by guards, thus breaking any privileged
communication between client and counsel.
In order to meet with their clients in person, attorneys must take a
chartered flight out of either Miami, Florida or Andrews Air Force Base in
Washington, DC. Upon arrival, attorneys then take a ferry to the base,
where they are housed in shared townhouses or the cuzcos, small trailer
complexes located around the base. The attorneys are then taken through
mazes of road blockades, barbed wire fences, and security checkpoints in
order to enter one of the many camps at Guantanamo which house the
detainees. They are searched and their privileged documents are
examined. Guards confiscate anything that could be used as a weapon,
including paperclips. Once inside the camps, defense teams are able to
meet with their clients privately. There have been several reports that
confidential in-person meetings between attorneys and detainees are
monitored by the government. 81
Upon meeting their appointed counsel for the first time, most
detainees are incredibly suspicious of their motives and affiliations. Even
after starting case preparations, appointed attorneys often have a very
hard time convincing their clients to keep them on the case. 82 Detainees
are understandably wary of their appointed counsel and express concerns
that American counsel will not vehemently defend them due to their
personal biases. Others believe that their American attorneys are spies for
the United States government. This suspicion is not too far-fetched, given
recent reports from defense counsel that they had been approached by the
FBI to become informants. 83 In addition to attempting to gain their
clients trust, the attorneys must also overcome cultural barriers. Most
detainees strongly prefer to be represented by male counsel. Female
counsel who have represented the detainees have worn culturally
appropriate clothing out of respect for their clients. Attorneys try to make
their clients comfortable in their surroundings. Some will bring cultural
foods to share with their clients and talk casually over a meal. Attorneys
Janet Reitman, Rolling Stone, supra note 24. (More recently, there have been
allegations that the government read the 9/11 Defense attorneys' e-mails and
listened in on attorney-client conferences through a device disguised as a smoke
detector.)
82 Wilson, Rick. A Long Strange Trip: Guantanamo and the Scarcity of
International Law Guantanamo Lawyers, September 9, 2007, available at
http://dlib.nyu.edu/guantanamo/documents/pdfa/Wilson_A%20Long.pdfa (On this
particular trip to the base, one of about a dozen I have made over three years, I
had a difficult mission. I was there to try to persuade our client not to drop us as
his counsel, hoping that I could convince him that the American legal system and
American lawyers could offer him some hope of justicefor him, the chance to go
home and begin his life again.)
81
28
who do not have the funds to do so are at a loss when it comes to gaining
their clients trust. The language barrier also makes communication
between the attorneys and the detainees much harder. Although some
detainees have become proficient in English, either in their home countries
or while being detained at Guantanamo, many are still more comfortable
conversing about complex issues such as their legal strategies in their
native tongues. In this case, an interpreter is required. Nor are
interpreters necessarily proficient. As the authors personally observed
during Hadi al-Iraqis hearings in September 2015, the translator failed to
accurately interpret during a vital colloquy as to the right to counsel,
Adding an interpreter into the attorney-client conversation is
disconcerting for both counsel and client. Both are concerned that the
interpreter will leak the information shared between the attorney and
client to the government. As one defense attorney noted, no matter how
private you try to keep your meetings with your client, the prosecution still
seems to know everything and is three steps ahead of you. Many of the
attorneys lodged formal complaints with the court after alleging that their
attorney-client privilege was broken when their e-mails were monitored
and the government placed monitoring devices inside smoke detectors in
interview rooms, a claim that the DOD vehemently denied. 84 Many of the
inmates are very wary of the interpreters, as some detainees have reported
that interpreters hired by the military commission for the trials are the
same interpreters used at CIA torture camps to interrogate the
detainees. 85
At the end of their meetings, both client and attorney often walk
away from the encounter with an uneasy feeling: the attorney is unsure
how to best advise the client in such a situation, and the client is still
unsure if his counsel will be able to help at all:
At the end of the visit, your client expresses his sincere
appreciation for your having come, and assures you he
knows that not all Americans support the administration's
repressive treatment of the men imprisoned at Guantnamo
Bay. You are taken aback and embarrassed at being met
with kindness and solicitude by a man whom your
government has caged for years for no discernible reason.
You promise to write and keep your client informed, and to
continue working on his behalf to correct the injustices
visited on him and his fellows. He responds with polite but
understandable skepticism. The interview closes on this
ambiguous note. 86
Janet Reitman, Rolling Stone, supra note 24.
Id .
86 Thomas P. Sullivan, We Have the Bodies Guantanamo Lawyers, May 15, 2007
available at http://dlib.nyu.edu/guantanamo/documents/pdfa/Sullivan_You.pdfa.
84
85
29
Upon leaving the meeting, any of the attorneys notes are confiscated by
the guards. They are then reviewed by government officials and censored
depending on what the government deems to be classified. 87 This process
is often lengthy and arbitrary, with attorneys waiting close to two months
to receive their notes and attempting to determine why certain pages are
deemed classified and kept in a secure, Government facility. 88
When determining how to approach a detainees defense, attorneys
face severe barriers to obtaining the evidence and information they need.
Witness statements and medical records are deemed to be national
security concerns and are not released. In the case that information is
released to counsel, it is often under the instructions that it cannot be
passed along to their clients for national security reasons, despite the fact
that courts have ruled that detainees are entitled to adequate substitutes
for classified information, and, unless granted an exception, government is
to provide detainee's counsel with the classified information, provided
counsel was cleared to access such information. 89 Attorneys often face
major issues advising their clients simply because they do not know what
applies under the commissions vague and ever-changing rules:
During one recent set of 9/11 hearings, an attorney for one of
the defendants said she couldn't advise her client of his
rights because I frankly don't know what they are. The
judge didn't seem to be sure either. 90
2. Proposed Changes to the Military Commissions

A series of relatively simple changes to the military commissions at
Guantanamo Bay would significantly improve the relationship between the
detainees and their attorneys, thus ensuring that the commissions
maintain a sense of legitimacy and ensuring that detainees receive the
most effective representation possible.
Id. (You are escorted back to the outside gates, where a soldier runs the
scanner over you again and confiscates the notes you have taken. For you to have
access to them later, and to use the information in court papers or share with your
partners, a security officer must first read and approve them, a time-consuming
process which, according to DOJ security personnel, results in the loss of the
attorney-client privilege.).
88 Gorman, Candace. Yossarain is Back, Guantanamo Lawyers, published
October
8,
2009,
http://dlib.nyu.edu/guantanamo/documents/pdfa/Gorman_Yossarian.pdfa.
89 Zittler, Jay M. Rights of Alien Detainees Held Outside The United States As to
Their Treatment and Conditions of Detainment, 6 A.L.R. Fed. 2d 185 (Originally
published in 2005). Available on Westlaw. Citing Alhami v. Bush, 585 F. Supp. 2d
114 (D.D.C. 2008).
87
30
a.
Preserve the Right to Counsel by Providing Attorneys

with Adequate Access to Clients
In order to effectively represent their clients, attorneys require

constant access to their clients. This limited access to clients poses several
causes for concern. First, it makes it nearly impossible for attorneys to
form a meaningful and trusting relationship with their clients. Second, it
inhibits the flow of information between counsel and client, preventing the
provision of meaningful advice regarding the case.
Providing additional methods for attorneys and clients to
communicate seems as though it would be a relatively easy fix. Detainees
should be permitted access to their attorneys through secured phone lines,
video-call setups or other appropriate means of instant communication.
b.
Allow Attorneys to Converse with their Clients

Regarding All the Evidence Against Them, Including
Evidence that Has Been Restricted for National
Security Concerns
In order to plan defense strategies, it is imperative that a defendant

understands and is aware of all the information that the prosecution might
use against him. However, while some classified information may reach
the attorneys, some of the information will never reach the clients, despite
the fact that courts have ordered that an acceptable substitution for the
classified information be provided. In the same way, information that is
conveyed by the client to the attorney can also be considered to cause great
damage to national security, 91 meaning that attorneys are limited in the
information they are allowed to convey to others. This directive starkly
contradicts the rights set forth in both civilian criminal trials and the
Uniform Code of Military Justice, both of which state that defendants are
entitled to view the evidence against them.
When defendants are unable to examine the evidence being used
against them, they are unable to fully understand why and how they are
being charged as well as how to best respond to and defend against the
charges. By not being able to discuss this evidence with their clients,
attorneys are unable to learn the importance of the evidence and how it
can best be refuted.
Rolling Stone, supra note 24, (quoting David Nevin, lead counsel for Khalid Sheikh
Mohammed, We were told that if any of the words of our client were let out, it would
cause great damage to national security. At one point, I asked them, 'So if he says he likes
peanut butter, that's classified?' With a straight face, they said yes.").
91
31
Allowing defendants access to all the evidence against them would

ensure the Commissions include the same fair trial rights that we uphold
for our own criminal defendants and members of the military, as well as
the standards that exist in international human rights treaties.
c.
Allow Non-American Counsel Overseen by Judge

Advocates to Represent the Defendants
Similar to the practices of other military tribunals, the Military

Commission at Guantanamo Bay should allow for international attorneys
to represent the detainees. It is not necessary that the foreign counsel be
the only counsel for the detainees, it would be preferable that a military
attorney stay on the case as well, in order to assist the foreign attorney in
navigating the choppy waters of the military commission. Allowing for
foreign counsel to join the defense teams would improve the representation
of detainees for two reasons.
First, it would immediately create a sense of trust between the
detainees and their legal team. Having someone who understands the
detainees culture, speaks their language, and is not affiliated with the
United States government would prove to the detainees and to the rest of
the world that the defendants in the military commissions are being
represented fairly and zealously.
Second, keeping a judge advocate on the case who is familiar with
the military commissions would assist the foreign counsel in navigating
the rules of the military tribunals. The detainee also has the option of
assigning the outside counsel member as lead counsel under the Military
Commissions Act, thus ensuring that the foreign counsel would be
authorized to make all the primary decisions regarding the detainees
defense strategy.
d.
The Attorney Client Privilege Must Be Preserved to the

Highest Degree Possible
Protecting and maintaining attorney-client privilege at the military

commissions is integral for several reasons. First, attorneys must be able
to converse with their clients without the fear that their conversation is
being monitored. They must be able to give candid advice to their clients
without fear of being removed from a case. Second, clients must feel as
though they can be open and honest in their conversations with their
attorneys, something they are likely not willing to do if they are under the
impression that the conversation is being monitored by the government.
For defense attorneys, it is incredibly important to ensure that the client
feels comfortable speaking with their attorney so that the attorney is
32
certain they are being given the entire picture and can plan the best
defense possible for their client.
C.
DENIAL OF DUE PROCESS IN PROCEEDINGS
The procedures of the Military Commissions themselves are the

subject of litigation and widespread objection. First, the tribunal does not
have many of the due process protections found in the standard criminal
system. Evidentiary standards are relaxed or non-existent. The
confrontation clause so known within the federal courts is almost
completely absent from the tribunals, subject to witness unavailability or
secrecy issues. No right exists to a speedy or public trial. In reality, trials
are neither speedy nor public. An overwhelming majority of the detainees
languished for years without charges ever being brought.
The Geneva Conventions require that a trial for violations of the
laws of war before a regularly constituted court. One of the primary
issues at Guantanamo is whether the military commissions are in fact
such a court. Most argue that the military commissions do not meet this
standard as they are inconsistent with court martial process and lacking in
constitutional due process protections. The legitimacy of crimes triable
before a military commission remains at issue, as the crimes of conspiracy
and material support for terrorism are not traditionally considered war
crimes under international law, nor did they exist prior to the creation of
the military commissions. Continuing the use of the military commissions
to try detainees will only solidify the use of the commissions as an unequal
parallel system of justice to try foreign nationals from this point forward.
Questions were also raised as to the legitimacy of the tribunal itself.
This is something we have seen time and again with ad hoc tribunals. The
first thing defendants do is to challenge whether the tribunal was legally
formed, under what authority, and whether the tribunal has jurisdiction
over the individual. This initial problem and burden could be avoided by
the creation of a specialized tribunal established solely to prosecute
national security, terrorism, or military-related offenses, or use of the
existing criminal justice system.
The first line of defense in protecting basic rights is de jure and de
facto access to adequate and effective judicial remedies. The existence of an
armed conflict or of a state of emergency cannot entail the suppression or
ineffectiveness of the judicial guarantees that a State is required to
establish for the protection of the rights not subject to derogation or
suspension, such as the right to life and to personal integrity. 92 Common
92
IACHR, Report on Terrorism and Human Rights , OEA/Ser.L/V/II.116.Doc.5 rev.

33
Article 3 of the Geneva Conventions prohibits the passing of sentences

without previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees. No exception exists to times of war
or national security.
The military commissions are essentially an attempt to create a
system to provide a veneer of legitimacy, while at the same time hiding
complicity for war crimes allegedly committed by the United States
Government.
1. Lack of access to evidence and Classified

Information
The handling or disclosure of classified information is an
overarching problem. In almost all cases, the attorneys or the personal
representatives are prohibited from reviewing any classified documents or
evidence with the defendants. Even defense counsel is often given
restricted access to evidence, and the proceedings are conducted in secrecy.
Classified information is defined as any information or material
that has been determined by the United States Government pursuant to
an executive order, statue, or regulation, to require protection against
unauthorized disclosure for reasons of national security. 93 The use of
classified evidence in a terrorism trial poses special problems in
prosecuting, defending and adjudicating terrorism cases in Article III
courts. The Classified Information Procedures Act (hereinafter CIPA)
allows: when the court determines that the interests of justice would not
be served by dismissal of the indictment or information, the court shall
order other such action, in lieu of dismissing the indictment or
information, as the court determines is appropriate. Such action may
include, but need not be limited to (A) dismissing specified counts of the
indictment or information; (B) finding against the United States on any
issue as to which the excluded classified information related; or (C)
striking or precluding all or part of the testimony of a witness. 94
CIPA was crafted in response to the problem of graymail, a
defense tactic that often forced the government to either disclose classified
evidence or dismiss case altogether. CIPA is invoked chiefly where a
defendant does not already have classified information and seeks to
discover it through Brady or other criminal discovery rules. 95 CIPA is used
1, October 22, 2002, para. 343.
93 See CIPA, 18 U.S.C. app. III, sec. 1(a).
94 CIPA, 18 U.S.C. app. III, sec. 6(e)(2).
95 Brady v. Maryland, 373 U.S. 83 (1963) (holding that suppression by the
prosecution of evidence favourable to an accused upon request violates due
34
to protect classified information in criminal trials generally by permitting

the trial court to make pretrial judgments regarding the use, relevance,
and admissibility of such information in camera and ex parte. 96 Where the
classified information is relevant to a criminal prosecution, the judge can
permit the government to disclose summaries of or substitutions for the
evidence in lieu of the actual evidence. 97
Issues will arise when defense counsel is given a security clearance
to view certain evidence, but the defendant does not have one. This creates
a barrier to the ability of counsel to discuss evidence with the defendant,
prepare for cross-examination, or possibly uncover exculpatory information
or problems with the Governments evidence.
Classification restrictions raise concerns, as they prevent the
accused from complaining about human rights violations and seeking
redress, but also affect the ability of attorneys to investigate and prepare a
defense. This constitutes an undue impairment on the ability of a lawyer to
provide effective representation. There is a lack of clarity in the
classification rules, and defense lawyers operate under the pressure of
threat of criminal prosecution if classified information is revealed, thus
further hindering the ability to provide effective representation. Finally,
the prosecution submits a high number of ex parte submissions, where
evidence is completely unavailable to the defense.
2. Denial of right to confront witnesses

The location of the tribunal is a serious obstacle to the public nature
required of criminal trials. The public is excluded from the actual
courtroom, forced to sit behind thick glass walls designed to keep out all
noise, and the proceedings are broadcast into the viewing room at a 40
second audio delay in case any classified information is presented. To even
get to Guantanamo to view the process, one needs to be approved by the
convening authority, travel great distances, and stay in a tent city
inappropriately named Camp Justice that more closely resembles a
United Nations refugee camp than a judicial complex.
Nor does the defense have the same legal powers to compel the
attendance of witnesses or cross-examine them to the same extent that the
prosecution has. The military judge has the discretion to decide that a
witness, including key witnesses for the defense, may be deemed
unavailable. This then allows for the admissibility of hearsay evidence and
process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.).
96 See CIPA, 18 U.S.C. app. III sec. 6 (2006).
97See CIPA, 18 U.S.C. app. III, sec. 6(c).
35
hearsay within hearsay to be admitted, without cross-examination or

confrontation, against a defendant.
In Hamdi v. Rumsfeld, 98 the Court ruled that hearsay may need to
be accepted as the most reliable available evidence from the Government
at a time of ongoing military conflict. 99 Thus, a district judge can admit
hearsay evidence that is reliable and material and relevant to the
legality of the petitioners detention when the provision of non-hearsay
evidence would unduly burden the movant or interfere with the
governments efforts to protect national security. 100 The Government can
also use hearsay evidence whenever it is not practical to bring a witness
to Guantanamo, further eroding the confrontation and fair trial rights of
the defendant.
3. Non-Existent Right to a Speedy Trial

One of the most notable aspects of the military commissions is the
sheer length of time from arrest/capture to trial. Recent estimates state
that the 9/11 team will not go to trial until 2020, nineteen years after the
alleged commission of their offenses. Hadi al-Iraqi is in in the process of
receiving new defense counsel (pending security clearance), and his trial
date is likely to be just as far off.
One reason for the extensive delays involves the complex litigation
regarding the legality/validity of the offenses charged, as well as the
procedures to be used and unclear rules governing evidence and witnesses.
Not to mention the sheer logistics of holdings hearings at Guantanamo or
for attorneys to meet with their clients. Cases are often on hold while
appellate courts attempt to resolve issues of first impression. Questions as
to the constitutionality of procedures overwhelm the process, along with
the question of whether the entire Constitution applies to these
proceedings.
Moving these cases to the federal civilian criminal justice system
would eliminate an overwhelming majority of the pretrial litigation. The
laws and rules are mostly clear, attorneys would have easy access to courts
and clients, and federal judges are known to move their dockets along.
Terrorism cases and those involving classified material or
military/international witnesses are not unknown. Nor would we require
the extensive pretrial litigation or lengthy interlocutory appellate delays
that have plagued the military commissions. Therefore, transferring
jurisdiction would significantly reduce the time until these defendants are
542 U.S. 507 (2004).
Hamdi v. Rumsfeld , 542 U.S. 507 (2004) at 533.
100 In re Guantanamo Bay Detainee Litig ., Misc. No. 08-442, CMO sec. II.A (Nov.
6, 2008).
98
99
36
brought to trial, reduce and/or eliminate the onerous cost burden of

operating the most expensive prison and court in the world, and most
importantly, ensure a fair judicial process that protects the rights of the
defendants and brings closure to the victims. All parties want a process
that will have a legitimate and justified result. Otherwise, this entire
process has been meaningless and constitutes the greatest theft of
taxpayer dollars and misappropriation of funds in American history.
4. Lack of an Impartial Tribunal / Jury of Peers

Nor do military commissions guarantee the right to a trial before an
independent and impartial tribunal. The convening authority has broad
powers, is closely connected to the executive branch and its potential
influence on the proceedings, combined with the insecurity of tenure of
judges who are selected by the convening authority. Further, the
appointment of active duty military officers as jurors, including those
potentially from the same chain of command, calls into question the
independence and impartiality of those rendering verdict and sentence.
Many of those involved served in Afghanistan or Iraq, directly
experiencing the crimes of which the detainees are accused. This is akin to
having police officers or FBI agents serve on jurors of cases involving
defendants accused of shooting law enforcement officers.
Clearly defendants and counsel possess valid concerns about the
impartiality of the jury, and the factors which would traditionally
disqualify a judge or juror in a civilian court (bias, knowledge of the facts
of the case, personal involvement) are not even considered at the military
commissions.
5. Violation of the Prohibition on Ex Post Facto Laws

Finally, there have been questions as to the lawfulness of the
criminal charges, given that the offenses chargeable before the military
commission did not exist prior to September 11, 2001. This implicates the
long-standing principles against ex post facto application of laws, or
nullum crimen sine lege.
The jurisdiction over offenses that are not recognized as or defined
in accordance with existing law of war offenses at the time of the conduct
violates the principle of legality, protected under both IHR and IHL. The
prohibition against ex post facto laws, a principle of legality under
international law, is rarely applied by the military commissions. Although
the U.S. initially conceded that the war crimes specified by the 2006 MCA
37
were not a violation of any law of war statute or law of war as defined by
customary international law, it later argued the existence of a fourth body
of criminal law known as domestic law of war to justify the prosecutions.
The question of ex post facto laws was litigated before the D.C. Circuit
Court, which held that the 2006 MCA did not authorize retroactive
prosecutions of crimes that were not punishable as war crimes under U.S.
law at the time they were committed, and that material support for
terrorism was not a pre-existing war crime under the law of war. 101
In another similar case, the court vacated material support for
terrorism and solicitation of others to commit war crimes convictions,
under an ex post facto challenge. 102 Challenges remain against the ability
of conspiracy as a stand-alone offense, as well as the governments
domestic war crimes theory. Military commissions should not prosecute
detainees for acts that are not defined as war crimes under international
law and which were not punishable at the time they were allegedly
committed. Further, the issue remains as to whether the United States
was engaged in an armed conflict on September 11, 2001, or whether the
armed conflict commenced the following day. A related factor is that the
September 11 attacks were committed against civilians within the
boundaries of the United States, and thus arguably should be the subject
of prosecution in the civilian criminal courts. As to the cases against
Nashiri and Hadi Al-Iraqi, those cases are more akin to offenses against
the military, yet the question remains as to whether the crime, as charged,
was a valid criminal offense on the date it was allegedly committed.
IV.
GREAT EXPECTATIONS: SOLUTIONS AND RECOMMENDATIONS FOR

CLOSING GUANTANAMO AND FOR PROSECUTING TERRORISM OFFENSES
IN THE FUTURE.
In a commencement speech to University of California Berkeley Law

School in 2013, former Attorney General Eric Holder stated:
Let me be clear: those who claim that our federal courts are
incapable of handling terrorism cases are not registering a
dissenting opinion, they are simply wrong. Their assertions
ignore reality. And attempting to limit the use of these
courts would weaken our ability to incapacitate and to
punish those who target our people and attempt to terrorize
our communities. Throughout history, our federal courts
have proven to be an unparalleled instrument for bringing
terrorists to justice. They have enabled us to convict scores
101
102
Hamdan v. United States , 696 F.3d 1238 (D.C. Cir. 2012).

Al Bahlul v. United States, (D.C. Cir. 2014).
38
of people of terrorism-related offenses since September 11.

Hundreds are properly, safely, and securely held in our
federal prisons, not Guantanamo, today. Not one has ever
escaped custody. No juridical district has suffered a
retaliatory attack of any kind. And no other tool has
demonstrated such a robust ability to stop terrorists and
collect intelligence over a diverse range of
circumstances. 103
Since September 11, 2001, the United States federal courts have
successfully handled terrorism cases, resulting in almost two hundred
convictions, at a 91.121% conviction rate. 104 None of these cases resulted
in attacks on the courthouse, judges or prosecutors, nor have any of the
alleged or convicted terrorists escaped from custody, either pretrial or postsentencing. Compare this with the military commissions at Guantanamo,
where only five convictions have resulted, two of which were released
within one year of their conviction. 105
A number of factors exist that can aid in prosecuting terrorists
before the domestic criminal courts. First, the extradition process can be
used to bring suspects to the United States, rather than engaging in what
essentially constitutes kidnapping and forced extraction in order to bring
suspects into custody. Prosecution and defense can enter into agreements
to toll speedy trial periods or statutes of limitation in order to gather more
evidence, protect on-going investigations, or address other matters that
require a delay in proceedings, while still protecting the rights of the
defendants. Sealed indictments to protect statute of limitations issues for
the prosecution. A specialized defense bar could be created for terrorism
cases, similar to death penalty certified lawyers in many states, with
lawyers who possess the requisite security clearance, as well as knowledge
about the laws, penalties, and particular circumstances that govern these
cases.
Amendments to legislation or special rules may need to be put into
place regarding the issue of closing the trial (or solely pretrial proceedings)
Holder, Eric. http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech130511.html. Last accessed February 6, 2014.
104 Richard B. Zabel & James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting
Terrorism Cases in the Federal Courts: 2009 Update and Recent Developments, at
preface (2009); see also Terrorist Trial Report Card: Sept. 11, 2000-Sept. 11, 2009,
Ctr. On Law & Sec., NY. Univ. Sch. Of Law (2010), available at
http://www.lawandsecurity.org/publications/TTRCFFinalJan14.pdf. See also Dept
of Just., Introduction to National Security Division Statistics on Unsealed
International
Terrorism
and
Terrorism-Related
Convictions,
http://www.justice.gov/cjs/docs/terrorism-convictions-statistics.pdf ( Last accessed
May 1, 2014 ).
105 See, William Fischer, Military Commissions Create Second-Class Justice
System,
Lawyers
Charge,
Truthout
(Nov.
10,
2009),
http://www.truthout.org/1110098. Last accessed May 3, 2014 .
103
39
to the public. While this does raise constitutional and due process
concerns, there is a need to balance these concerns against classified
information, limited disclosures, the jurys ability to hear all the evidence,
and witness testimony. Our system already handles these privacy issues in
confidential informant situations or cases involving child victims or
witnesses. Certainly solutions may be crafted for when there are issues of
national security involved.
Outside of the criminal justice system, there is also the possibility of
using the immigration courts in cases where the government is unable or
unwilling to disclosure information or pursue a criminal prosecution of a
terrorist suspect. In cases where a suspected terrorist is not a United
States citizen, the individual would be subject to pretrial detention, the
hearings are closed to the public, and the burden of proof for removal is
lowered. Obviously these cases do not result in a criminal conviction, and
end up with removal of the person from the United States, but it does
present an option. Additionally, given the detention standards in
immigration court, it also provides a means to detain individuals while the
criminal process is put into place, but with judicial oversight and time
restrictions. Immigration detainees also have access to counsel (retained,
not appointed). Immigration courts have a lower burden of proof, that of
reason to believe the person engaged in terrorist related activities, versus
the much higher, beyond a reasonable doubt standard in criminal
proceedings. Additionally, immigration court proceedings are bench trials
and the prosecutor is from Department of Homeland Security, thus
addressing any concerns of confidentiality or security clearances.
Regardless of the model chosen, provisions must exist to allow for
access to counsel and a moderate level of transparency while still
protecting issues of intelligence gathering and national security. In recent
years, courts have developed specialized defense bars to assist in cases
involving the death penalty, or more recently, to address the immigration
concerns or immigration-based offenses so frequently being charged in the
criminal courts. Our federal system already has a system of federal
defenders, but also the Criminal Justice Act Panels, experienced lawyers
ready and willing to take on court-appointed cases. A similar panel of
lawyers could be compiled to accept appointments in the terrorism cases.
These lawyers could be pre-screened, receive specialized training as to
CIPA and other necessary laws and regulations, and also receive security
clearances ahead of time so that they are able to immediately commence
work on a case.
One vital aspect is the need for qualified defense counsel to
represent the individuals who also possess a security clearance sufficient
to review the information within the governments possession. Two options
exist to respond to this concern. First, federal defender offices could have
40
attorneys specifically for this function who have gone through the security
clearance process. Second, private attorneys could obtain security
clearances and offer to be on stand-by for court appointment when the
need arises to represent an individual in pre-trial or pre-indictment
detention. The system for appointing counsel or experts is already in place
in the federal criminal justice system (for example the Criminal Justice
Act panels), and could easily serve as a template for creating a system in
these specialized cases. If there is one lesson we have learned from the
Guantanamo proceedings, it is that there is no shortage of attorneys
willing to step in and provide quality representation to those in need.
From a law enforcement perspective, utilizing civilian courts and
investigative branches (as opposed to military commissions and
investigators) provides for greater international cooperation during both
the investigative and prosecutorial process. The networks and systems for
sharing information are already in place; however, the main obstacle to
gaining the information in the first place is convincing those in custody to
talk, or providing incentives (other than torture or enhanced interrogation
techniques) to do so. This is where providing defense counsel at early
stages can be of the greatest benefit. Counsel can discuss the benefits of
testifying or providing information with their clients, or begin to negotiate
plea agreements with the prosecution that provide for leniency or reduced
sentences in exchange for information. If the goal of these investigations
and prosecutions is truly to prevent future attacks or loss of life, would we
not want a system in place that would facilitate and promote the providing
of information? Especially information that would be voluntarily provided,
according to the bounds of the law and rules of due process, making it
admissible in court and not subject to prolonged pretrial litigation of
motions to suppress or motions in limine. Not to mention the added benefit
that information provided voluntarily, pursuant to a proffer agreement, is
often more accurate and complete than information obtained as a result of
harsh, confrontational interrogations or torture.
It is a false presumption that access to lawyers impedes the
interrogation and investigation functions. Interrogation continues after a
detainee meets with an attorney, and the record of recent terrorism
investigations demonstrates that interviews with terrorists who have
attorneys have produced an intelligence goldmine. 106 Since 2001, the
same period in which military commissions have convicted just three
terrorists, criminal courts have convicted more than two hundred
individuals on terrorism charges, or sixty-five times more than military
commissions. 107 One of the reasons interrogations in the criminal system
Gude, Ken. Criminal Courts are Tougher on Terrorists than Military
Detention Intelligence Collection is not Impeded by Access to Attorneys. 20
January 2010. www.americanprogress.org. Last accessed February 6, 2014.
107 Id .
106
41
are so successful is that a defendant facing a trial has a strong incentive to

cooperate with the government in exchange for a reduced sentence or
better conditions of confinement.
A. USE OF THE EXISTING FEDERAL CRIMINAL JUSTICE
SYSTEM.
The United States Criminal Code provides regular federal courts
with jurisdiction over crimes such as war crimes, torture, and genocide. 108
The War Crimes Act has been amended multiple times, including
amendments in 2006 (after the events of September 11, 2001), to define in
greater detail the prohibited offenses triable in federal court and to expand
the list of crimes covered by the state.
A number of substantive criminal offenses exist that would allow for
the prosecution of terrorist suspects in the civilian courts. First,
international terrorism, which applies to international terrorism
incidents which impact the United States is a specific offense that
prosecutors can charge individuals with, whether the acts occurred inside
the United States or not. 109 This offense involves acts of an international
nature, including threats or conspiracies to engage in such acts, which are
violent or otherwise dangerous to human life and which appear motivated
by an intent to coerce, intimidate, or retaliate against a government or a
civilian population (terrorist motive). The conduct is of an international
nature if it occurs primarily outside the United States or transcends
national boundaries, or includes a foreign terrorist organization.
Next, Domestic Terrorism involves acts, including threats or
conspiracies to engage in such acts, which are violent or otherwise
dangerous to human life, which appear motivated by an intent to coerce,
intimidate, or retaliate against a government or a civilian population
(Terrorist motive), and which occur primarily within the United States
and do not involve a foreign terrorist organization. Statutory violations
which, when accompanied by a terrorist motive, constitute federal crimes
of terrorism include, but are not limited to, those listed under the Program
Category of International terrorism.
Terrorist Financing involves instances in which an individual or
group of individuals, subject to the jurisdiction of the United States,
knowingly provides material support or resources, directly or indirectly, to
See, e.g. War Crimes Act of 1996, 18 U.S.C. Sec. 2441 (2006); Torture Victim
Protection Act, 28 U.S.C. Sec. 1350 (2006); Genocide Accountability Act of 2007, 18
U.S.C.S. Sec. 1091 (2010).
109 Offenses under this section may be found in 18 U.S.C. 32, 37, 81, 175, 175b,
229, 351, 831, 842(m) & (n), 844(f) & (i), 930 (c), 956, 1114, 1116, 1203, 1362, 1363,
1366(a), 1751, 1992, 1993, 2155, 2280, 2281, 2332, 2332a, 2332b, 2339 & 2340A;
42 U.S.C. 2284; 49 U.S.C. 46504, 46505(b)(3), 46506, 60123(b); and 18 U.S.C.
2332b(g)(5).
108
42
a foreign terrorist organization or to support the carrying out of a terrorist

act. This includes violations brought under 18 U.S.C. 2339A and 2339B
(providing material support to terrorists), 1956 (where the money
laundering or transfers involve specific unlawful activity of a terrorist
nature) and any other federal criminal violation where the intention is to
provide material support to terrorists or to conceal the provision of such
support.
The use of terrorism-related criminal offenses that already exist
under federal law eliminates any issues of ex post facto laws or concerns
regarding the constitutionality of particular offenses, a problem that
pervades many of the early prosecutions at Guantanamo. 110
Federal law permits authorities to arrest a suspected terrorist with
or without a warrant if they have probable cause to believe that he has
committed a federal felony. 111 The law also permits issuance of an arrest
warrant if there is probable cause to believe that a person is a material
witness to a federal offense and will not be available when needed to
testify either before the grand jury, at a trial, or in any other criminal
proceeding. 112 However, a material witness warrant may not be used as a
substitute for a criminal arrest warrant. 113 Individuals arrested on
criminal charges or on material witness warrants are eligible for release
under federal bail laws. 114 Use of these warrants in terrorism cases within
the existing criminal justice system could be a valuable tool by which to
gain information through lawful interrogations, while still securing the
witness (and possible future defendant) until such time as an indictment
can be sought.
One primary factor often put forward by those who oppose utilizing
the existing criminal justice system for terrorism cases is the issue of
safety, security, and detention of suspects. Those who advocate for the
need for preventative detention in terrorism cases fail to recognize the fact
See 18 U.S.C. 2339(A) (providing that it is illegal to provide material support
to terrorists) and 2339(B) (providing that it is illegal to provide material support
to foreign terrorist organizations). See also 18 U.S.C. 2332 (declaring that
homicide occurs when someone kills a national of the United States abroad); and
2332(a) (declaring imprisonment for anyone who sues, threatens, or conspires to
use a weapon of mass destruction against a U.S. national); 2332(b) (declaring that
acts of terrorism transcend national boundaries); 2339(C) (prohibiting the
financing of terrorism); 2339(D) (stating that it is illegal to receive military
training from foreign terrorist organizations); 18 U.S.C. 884, 992, 924
(pertaining to explosives offenses); 956 (pertaining to conspiracy to murder,
kidnap or maim persons, or to damage property overseas); 1203 (declaring it is
illegal to take hostages).
111 U.S. Const. Amend. IV; Fed. R. Crim. P. 41, Devenpeck v. Alford , 543 U.S. 146,
152 (2004).
112 18 U.S.C. sec. 3144; United States v. Awadallah , 349 F.3d 42, 64 (2d Cir. 2003);
United States v. Oliver, 683 F.2d 224, 231 (7th Cir. 1982).
113 United States v. Awadallah , 349 F.3d 42, 59 (2d Cir. 2003); In re DeJesus
Berrios, 706 F.2d 355, 358 (1st Cir. 1983).
114 18 U.S.C. sec. 3142.
110
43
that the federal criminal system already has systems, laws, and
procedures in place to handle such situations where there is a need to
protect the public. Additionally, the federal prisons and pretrial
detention centers have successfully held suspected and convicted terrorists
for years, without issue, escape, or violent attacks. The federal system also
has post-arrest and post-indictment procedures pursuant to the Bail
Reform Act. An individual charged with one or more of the terrorist
offenses listed in 18 U.S.C. 2332b(g)(5)(B) and punishable by a maximum
term of imprisonment of ten years or more may be held for a hearing to
determine whether any combination of conditions will be sufficient to
assure public safety and his appearance at future proceedings. 115 A
rebuttable presumption exists that no combination of conditions will
reasonably assure public safety or the later appearance of an individual
arrested for various terrorist offenses. 116
United States federal prisons house more than two hundred inmates
with a connection to international terrorism and the terrorism chapter of
the federal criminal code has over different offenses many criminalizing
conduct occurring outside the United States. 117 While some assert that
trial management and procedures pose difficulties when handling
terrorism trials, this too, is a false premise. Security, classified
information, and detainee considerations are all successfully handled in
the federal court system. For example, any safety or security concerns
about detainees charged with terrorism offenses may be alleviated through
special administrative measures, such as solitary confinement, restrictions
on communications or other means of ensuring the safety of the public. 118
Terrorism cases can and should be indicted and tried in the civilian
criminal justice system. This will safeguard the rights of defendants,
protect classified information, and rebuild Americas reputation as a
protector of human rights and due process. The federal courts have over
two hundred years of experience, procedures, precedent and systems in
place that, for the most part, conform to basic notions of due process. Cases
will no longer be mired down for years in pretrial litigation or distraction
from the actual charges. Outcomes and processes will be more certain, and
the result will be one that complies with the rule of law and basic notions
of fairness and justice.
18 U.S.C. 3144(e), (f), (g).

18 U.S.C. 3144(e).
117ABA Workshop Written Report: Trying Terrorists in Article III Courts (July 2009).
11828 C.F.R. 501.2 (2008).
115
116
44
B. CREATION OF A SPECIALIZED, PERMANENT TRIBUNAL

If the war on terror is going to be a long-lasting and on-going
conflict, then perhaps another solution is to establish a standing,
permanent tribunal as part of the United States federal court system with
the specific mandate to prosecute terrorism and related offenses. This will
eliminate the need for ad hoc tribunals, establish a set of rules and
procedures, and allow for immediate reactions to investigations and
prosecutions, rather than the haphazard and rushed approach taken in the
creation of the military tribunals at Guantanamo.
In fashioning such a permanent tribunal, one only needs to look to
the immigration courts or FISA courts for a workable example. These
courts are both relatively secret courts (the FISA Court moreso) that allow
for closed, confidential, and secret proceedings. However, these courts also
operate within the federal judiciary, and there are mechanisms for regular
review of decisions and oversight by the appellate courts.
While the disclosures of the last year have highlighted the problems
inherent in secret courts, such as the FISA courts, that does not mean that
we should forego exploring the use of a similar model of courts as an option
for pre-indictment detention of suspected terrorists. This would protect
against the concerns of many as to highly sensitive or classified
information being disclosed, and also protect the rights of those being
detained while allowing law enforcement to conduct investigations or
thwart potential terrorist threats or attacks. The uniqueness of most
terrorism cases is that the offenses traditionally have not yet been
committed, but, in reality, this truly is not that different from a conspiracy
case or other similar offenses that are punishable in the planning stages
only.
The creation of a specialized court within the current criminal
justice system could occur in one of two forms. First, the court could be
solely a preliminary court, to hear issues involving arrest warrants, search
warrants, detention or bond issues, and other matters prior to indictment.
It would allow for the appointment of counsel immediately upon the arrest
or detention of an individual, thus protecting the right to counsel and
avoiding subsequent litigation surrounding interrogations or violations of
Miranda 119 or other procedural rights. The court could be staffed with
judges, staff, and lawyers who all possess the required security clearances,
and systems could be in place at all times to handle sealed dockets and
CIPA concerns. Thus, any concerns over ongoing investigations or the need
to prevent an imminent attack could be addressed.
The second option would be to establish a court that would handle
only terrorism cases from start to finish. Thus, all pretrial, trial, and
119
384 U.S. 436 (1966).

45
sentencing matters would be handled by this Court, subject to the rules

and procedures already established for the federal criminal courts.
However, as a special court, systems could be put into place to handle
classified information, ongoing investigations, and the other special
concerns that arise in the terrorism cases. Additionally, similarly to the
immigration courts, this court could adopt rules of procedure and case law
precedent that is binding solely on the courts. The mandate of the court
could include only a specific set of federal criminal offenses, those involving
terrorism and war crimes. This could be a permanent, standing tribunal,
much like the International Criminal Court, thus avoiding the need for ad
hoc or temporary tribunals.
By creating a court within the existing justice system, and allowing
for judicial oversight and access to counsel, we can avoid the claims of
torture or other due process violations by keeping this within a system
that contains oversight and some levels of transparency, accountability,
and reviewability.
As for classified information concerns, in addition to the use of CIPA
and crafting a court staffed with judges, prosecutors, defense counsel and
administrative staff who have security clearances, there are other
possibilities to handle the concerns posed by classified evidence being
introduced in court. For example, courts can craft unclassified substitutes
for sensitive evidence or use protective orders when classified evidence
must be disclosed during the discovery process or at trial. The government
can declassify information where the benefits of using it in court outweigh
any marginal risk to national security or craft alternate charges that can
be proved without relying on classified evidence. Many of the terrorism
related offenses have similar parallels in the more common crimes, for
example, murder, arson, or other similar substantive charges. Finally, if
there are concerns about releasing classified information that may harm a
pending operation or investigation, there is always the option of
postponement of start of trial or delays in the proceedings, within the
limits permitted by the Speedy Trial Act.
CONCLUSION
The military commissions at Guantanamo Bay do not reflect the
international human rights standards regarding the rights afforded to
detainees or standards regarding the right to a fair trial and effective legal
representation. The commissions fall dramatically short of the criteria
expected by both the American people and international law.
A series of changes can easily improve the legitimacy of the right to
counsel at Guantanamo Bay. First, attorneys should be provided with
46
direct access to their clients, minus the bureaucratic hurdles. Second,

similar to the rules governing military tribunals of the past, international
attorneys should be invited and encouraged to join the defense team in
addition to the judge advocates currently assigned to the case, thus
providing the international community insight into the commissions and
legitimizing the efforts of the defense teams. Third, the attorney-client
privilege must be strenuously observed so that clients feel comfortable
sharing key information with their counsel and counsel is able to provide
their clients with candid advice.
Referring to Guantanamo Bay as the legal equivalent of outer
space, and encouraging the detainment of enemy combatants in such a
location should never have been a source of pride for the United States.
Instead of finding loopholes around the law, the United States should be
focusing on prosecuting the detainees within the law, providing as much
legitimacy and strength to the military commission as possible. David
Weissbrodt and Joseph Hansen opine that each procedural flaw or
inaccuracy of extraordinary courts such as the Military Commissions at
Guantanamo Bay lead to the outcomes of the court being perceived as less
legitimate domestically and abroad:
The procedural irregularities of the U.S. Military
Commissions in Guantanamo Bay underlie a strongly held
viewpoint that any convictions obtained will have been
achieved illegitimately. In this sense, fair-trial protections
are more than academic interests; they legitimize the
totality of the judicial-criminal process. Accordingly, if
governments seek results perceived as legitimate, it is in
their interest to ensure that extraordinary courts comport
with universally accepted fair-trial protections. 120
The rights contained within the Bill of Rights apply to criminal

defendants, not to the Government, victims, or anyone else in the criminal
justice system. We cannot compromise the foundation of our system merely
because terrorism offenses are at issue. In fact, it is the very nature of
these offenses that require our system to take greater strides to ensure
that rights are protected and a true, just result is reached in the cases. Our
world has seen time again the problems faced by specialized tribunals. The
ICTY was plagued with extensive appellate litigation as it sought to define
the elements of new offenses, defenses thereto, jurisdictional arguments
and a host of other issues. So, too, with the courts in Rwanda, Sierra Leon,
David S. Weissbrodt and Joseph C. Hansen, The Right to a Fair Trial in an
Extraordinary Court, Guantanamo and Beyond: Exceptional Courts and Military
Commissions in Comparative Perspective. New York: Cambridge University Press
(2013). P. 305, 318.
120
47
Cambodia, and even the International Criminal Court. However, by

utilizing a criminal justice system already in place, tested time and again
for over two centuries, many of these problems are eliminated.
The USS Cole Bombing occurred in 2000. Sixteen years later, AlNashiri has yet to stand trial, his case stalled as the parties litigate
evidentiary motions and disputes over the defendants competency to stand
trial. The events of September 11 occurred almost fifteen years ago, and
the defendants remain in the same status, pending pretrial motions, issues
of FBI informants, government interference with the attorney-client
privilege, and failures to disclose material evidence.
As to the victims, we must consider the hardships that arise for
victims when cases are brought by the military commissions in
Guantanamo, as opposed to the domestic criminal courts. First, the length
of the cases is at least four times as long as the average federal criminal
case. Second, victims have a difficult time attending proceedings,
dependent upon military transfer flights and the security concerns present
at Guantanamo. Third, unlike most criminal cases in the federal courts,
much of the proceedings at Guantanamo are in secret. Thus, victims are
not truly given the same rights and privileges as they would have in cases
brought in the domestic criminal courts. We all have an interest in
preventing loss of human life, and in protecting our nation. But we also
have an obligation to preserve the rule of law and ensure that our nation
respects the laws and rights of all.
The United States must declassify all evidence of torture and illtreatment, end the force-feeing of detainees, prosecute and/or punish those
involved in torture or abuse, and establish an independent monitoring
body outside the authority of the military or convening authority to
investigate and consult on the conditions at Guantanamo Bay, both as to
detention and the judicial proceedings.
As Attorney General Holder stated, Come what may, we must
never cede our freedoms or curtail our dearest liberties, nor feel that there
is a tension between them and our ability to keep safe. Especially in
moments of crisis, when we are under attack or faced with difficulty and
danger, our actions your actions must be grounded in the bedrock of
the Constitution. 121 The Constitution must apply uniformly and in its
entirety. The United States must acknowledge the wrongdoing and errors
committed, and finish this process in a way that provides legitimacy and
rehabilitates the reputation of the United States. Most of all, we must end
these proceedings and close the door on a dark chapter in the history of the
United States, for the sake of justice, and to finally provide the victims
with closure and peace.
Holder, Eric. http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech130511.html. Last accessed February 6, 2014.
121
48

A Bleak House in Cuba: A Call For Reform and The Closure of Guantanamo

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A BLEAK HOUSE IN CUBA: A CALL FOR REFORM AND

THE CLOSURE OF GUANTANAMO 1

FORWARD BY SARA ELIZABETH DILL

Charles Dickens, Nicholas Nickleby

Guantanamo Bay, Cuba will likely be one of the most horrific

capture of suspected terrorists. Much of this was a result of the United

A TALE OF TWO JUSTICE SYSTEMS: BUILDING THE MOST EXPENSIVE

Commission operated outside of any structure or existing court system,

Guantnamo and Beyond: Exceptional Courts and Military Commissions in

Cambridge University Press, 2013).

took steps to standardize the human rights afforded to prisoners of war

Cambridge University Press, 2013).

Guantnamo and Beyond: Exceptional Courts and Military Commissions in

Cambridge University Press, 2013).

government has consistently protested American presence on Cuban soil,

unlawful enemy combatants and ensuring the detainees would be

Guantnamo and Beyond: Exceptional Courts and Military Commissions in

Cambridge University Press, 2013). (Office of Military Commissions, Charge

A LEGITIMATE ENDEAVOR PURSUED

In a word, I was too cowardly to do what I knew to be right, as I

The criminal prosecution of terrorists is not a new phenomenon, nor

In examining the usefulness or success of the law in cases of terrorism,

prisoner of war. 44 In situations of international armed conflict, the Third

1. Norms of International Law and Armed Conflict

international human rights standards. Simply because the United States

the Third Geneva Convention guarantee the general right to humane

See Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug.

Thirteen international treaties and numerous regional treaties

Thus, while international law applies to these situations, states do have

against al-Qaeda, the Taliban, ISIS/ISIL, and associated forces. Under

THE UNITED STATES RESPONSE AND ACTION.

United States authority for its actions following the attacks of

Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).

shown that the commissions and tribunals at Guantanamo failed to do

A FAILED SOLUTION: THE MILITARY COMMISSIONS AT GUANTANAMO.

Experts state that [t]he United States Government set a dangerous

HUMAN RIGHTS VIOLATIONS

The words of Charles Dickens from over one-hundred years ago,

Tomm, Christie, Prosecuting Terrorism: Maintaining a United Criminal Justice

accessed February 6, 2014.

The commission and courts first faced a dilemma regarding whether

All sides agree that parties to a conflict may capture persons

detainees allegedly tried to hang or strangle themselves in a mass protest

2. Torture / Enhanced Interrogation Techniques

duty to exercise independent legal judgment and render thorough,

3. Denial of the Right to Habeas Corpus

72 Department of Justice, Office of Professional Responsibility, Report,

isolation with no human contact and force-fed. One detainee described

5. Violation of the Principle of Non-Refoulement

The right to the effective assistance of counsel in criminal

1. The Hurdles to Forming an Attorney Client Relationship

attorneys are finally approved to meet with their clients. Communications

2. Proposed Changes to the Military Commissions

Preserve the Right to Counsel by Providing Attorneys

In order to effectively represent their clients, attorneys require

Allow Attorneys to Converse with their Clients

In order to plan defense strategies, it is imperative that a defendant

Allowing defendants access to all the evidence against them would

Allow Non-American Counsel Overseen by Judge

Similar to the practices of other military tribunals, the Military

The Attorney Client Privilege Must Be Preserved to the

Protecting and maintaining attorney-client privilege at the military

DENIAL OF DUE PROCESS IN PROCEEDINGS