11 suspected Somali pirates are being transferred to Virginia from East Africa, for prosecution in a American federal district court, for their alleged acts of piracy off the coast of Somalia (click here to read the story: http://www.cnn.com/2010/CRIME/04/22/pirates.us.prosecution/index.html) . In March of this year, 5 of the same individuals were involved in an attack on USS Nicholas, while 6 others were involved in an attack on USS Ashland in early April. The attacks were unsuccessful, and the suspected pirates were captured quickly thereafter by U.S. forces. After the capture, U.S. authorities decided to bring the pirates to the United States for prosecution - a move that is somewhat unprecedented. Pirate prosecutions are logistically difficult, costly, and politically unfavorable. Many have advocated the need to find an "African" solution for the African problem of piracy, thus arguing against domestic prosecutions in the United States. In fact, until now, only one suspected Somali pirate was transferred to the United States for prosecution. All other captured pirates were either released (a truly undesirable outcome!), or transferred to other countries. The United States has signed a Memorandum of Understanding (MOU) with Kenya, whereby Kenya accepted to prosecute suspected pirates captured by U.S. forces in the Indian Ocean. Thus, several pirates have been prosecuted in Kenya, and close to one hundred are currently detained and awaiting prosecution in Kenyan jails. In sum, until now, the United States had largely preferred not to open its courts for the purpose of Somali pirate prosecutions.
American stakes in the situation may have changed in light of the fact that American ships have been targeted by the Somali pirates. The first Somali pirate to be transferred to an American jurisdiction, mentioned above, was detained after an unsuccessful attack on a U.S. ship, USS Alabama, in April 2009. The 11 pirates currently being transferred to the U.S. were clearly involved in attacks on American ships. Jurisdictionally speaking, these prosecutions no longer entail the exercise of absolute universal jurisdiction - a situation where the prosecuting jurisdiction has no nexus to the crime or the perpetrators. Instead, these pirate prosecutions entail a case of territorial jurisdiction (to the extent that the U.S. ships attacked are considered American soil), passive personality jurisdiction (if U.S. victims are involved), or the protective principle (if U.S. interests are directly threatened by the pirates). Also, these prosecutions can be viewed as an exercise of modified universal jurisdiction - a situation where the crime itself, because of its atrocious nature, warrants the exercise of universal jurisdiction, but where the prosecuting jurisdiction actually has ties to the crime or its perpetrators. This fortified case of universal jurisdiction is politically more tenable and legally unquestionable.
The United States should however be prepared to exercise true universal jurisdiction and to prosecute suspected pirates, in those cases where pirates are captured after attacks on non-American ships. Such prosecutions would strengthen the law enforcement structure applicable to the Somali pirates and would significantly contribute to regional and global anti-piracy operations. Knowing that no pirates would be released after capture would send a potent deterrence message to pirates and could possibly entice other maritime nations to extend their domestic courts toward piracy prosecutions. Then, the world would stand a chance of winning the piracy wars.
Thursday, April 22, 2010
Sunday, April 4, 2010
ICC to Investigate Kenyan Post-Election Violence
The International Criminal Court ("ICC") just began investigating Kenyan officials for post-election violence that rattled this African country in 2007 (click here to read the story: http://www.cnn.com/2010/WORLD/africa/03/31/icc.kenya/index.html). The ICC judges determined that an investigation into these events was warranted, as they may amount to crimes against humanity, an offense defined under the ICC statute. Kenya had initially promised to investigate these matters, and to possibly establish an ad hoc or hybrid tribunal that would assume jurisdiction over the above events, similarly to what had taken place in Sierra Leone, with the establishment of the Special Court for Sierra Leone, or in Lebanon, where the assassination of a former prime minister is currently under review by a special court. However, when Kenyan authorities stalled investigative efforts, the ICC took matters into its own hands by deciding to launch an investigation and thereby preclude the possibility that Kenyan offenders would remain unpunished regarding their roles in 2007 violence.
In fact, the 2007 electing opposing incumbent president Kibaki, and the opposition leader Odinga resulted in a Kibaki victory, but many alleged that the election was rigged. Following election results, violence erupted and several hundred Kenyans died. The ICC's involvement in these matters signals that the world community no longer tolerates human rights abuses. A country may no longer claim that violence is an internal matter. If human lives are seriously endangered, and if government officials participate in the violence, then the international community has a duty to intervene. Moreover, the world criminal court may have a duty to investigate and potentially punish any government officials taking place in state-sponsored violence. This is a positive development in international human rights and international criminal law, and a sign of the growing importance of the ICC.
In fact, the 2007 electing opposing incumbent president Kibaki, and the opposition leader Odinga resulted in a Kibaki victory, but many alleged that the election was rigged. Following election results, violence erupted and several hundred Kenyans died. The ICC's involvement in these matters signals that the world community no longer tolerates human rights abuses. A country may no longer claim that violence is an internal matter. If human lives are seriously endangered, and if government officials participate in the violence, then the international community has a duty to intervene. Moreover, the world criminal court may have a duty to investigate and potentially punish any government officials taking place in state-sponsored violence. This is a positive development in international human rights and international criminal law, and a sign of the growing importance of the ICC.
Sunday, January 31, 2010
Tony Blair and Accountability: A Model for the United States
The former British Prime Minister, Tony Blair, is currently the subject of an investigation over Great Britain's involvement in the Iraqi War. As Great Britain's leader in 2002 and 2003, when the decision was made to invade Iraq, Tony Blair now faces responsibility for his affirmative vote in this intervention. In other words, the current British leadership wants to know precisely why Mr. Blair decided to join in with former President Bush and the so-called Coalition of the Willing, which sent thousands of troops into Iraq to topple Saddam Hussein's regime. Mr. Blair so far has been adamant about the righteousness of his decision. Nonetheless, even if his decision is ultimately approved in the present investigation, the existence itself of the inquiry poses an interesting question and represents a good model for the Obama administration. No president should be immune from questioning after the end of his or her reign. The presidential office of any country should not signal impunity and should not shield its former holders from inquisition into their actions.
President Obama has struggled with the idea of accountability for top level officials of the Bush administration. Even those arguably most responsible for the prisoner abuses that took place in Abu Ghraib and Guantanamo live freely and hold professorships and judgeships, without facing any accountability for their reproachable actions. While I understand President Obama's desire to bring closure to past abuses and to move forward in a spirit of unity and bipartisanship, some offenses are simply too grave to be overlooked. For example, invading a foreign country over false accusations of having weapons of mass destruction is more than serious. Moreover, arguing that Al Qaeda and Taliban detainees do not deserve any Geneva Convention protections is not just legally wrong; it is criminally reprehensible. Finally, redrafting the definition of torture so that its authors almost never face criminal liability is almost as bad as torturing someone and certainly deserves some sanctions. It appears that Great Britain has understood the importance of the above point, but that the United States is still short of reaching the same goal. President Obama should look overseas for guidance from the Brits on investigation, accountability, and the audacity to question prior leaders. If American officials committed abuses, they should be appropriately punished, no matter which president they served under and no matter how important their position used to be. Justice should be blind for all.
President Obama has struggled with the idea of accountability for top level officials of the Bush administration. Even those arguably most responsible for the prisoner abuses that took place in Abu Ghraib and Guantanamo live freely and hold professorships and judgeships, without facing any accountability for their reproachable actions. While I understand President Obama's desire to bring closure to past abuses and to move forward in a spirit of unity and bipartisanship, some offenses are simply too grave to be overlooked. For example, invading a foreign country over false accusations of having weapons of mass destruction is more than serious. Moreover, arguing that Al Qaeda and Taliban detainees do not deserve any Geneva Convention protections is not just legally wrong; it is criminally reprehensible. Finally, redrafting the definition of torture so that its authors almost never face criminal liability is almost as bad as torturing someone and certainly deserves some sanctions. It appears that Great Britain has understood the importance of the above point, but that the United States is still short of reaching the same goal. President Obama should look overseas for guidance from the Brits on investigation, accountability, and the audacity to question prior leaders. If American officials committed abuses, they should be appropriately punished, no matter which president they served under and no matter how important their position used to be. Justice should be blind for all.
Sunday, December 13, 2009
The Troops' Surge in Afghanistan: Just Another Iraq
President Obama recently announced a new "surge" strategy in Afghanistan, warranting the deployment of additional 30,000 troops over the next 18 months. According to the President, the troops would come home after the 18-month period, once the Afghan security forces were appropriately trained and could protect their own country independently. As justification for the sending of troops, President Obama cited the 9-11 Al Qaeda terrorist attack on the World Trade Centre, and the lingering Al Qaeda threat from Afghanistan that has continued ever since. Thus, the United States is preventively self-defending in Afghanistan, by trying to neutralize the enemy (Al Qaeda) before it strikes again.
I believe that the President is wrong in his strategy. Afghanistan looks like another Iraq: an unstable, ethnically diverse country, poor and potentially prone to housing terrorists. In Iraq, the United States sent troops in 2003 with the goal of quickly replacing the rogue Saddam Hussein regime. When commentators say that the surge in Iraq has worked, they imply that this goal has been accomplished. At what cost, however? In 2009, we are still in Iraq. Thousands of American soldiers have died, and so have countless Iraqis, caught up in so-called sectarian violence sparked through the American involvement. We have spent billions of dollars in Iraq, neglecting domestic problems and causing a major financial crisis at home. Now, soldiers are returning from Iraq to be immediately deployed in Afghanistan. It is likely that several years from now we will still be in Afghanistan, and that the surge there could work only if we sacrifice thousands of soldiers and billions of dollars....again. When Hillary Clinton and Robert Gates were questioned by the press about the 18-month deadline for the return of our troops home, they both fidgeted with their answers and admitted that the deadline was flexible, and that the President could always change his mind. 18 months means 18 months only if the President agrees, and in the summer of 2011, he may no longer agree.
Moreover, I believe that the President's justification for sending troops to Afghanistan is flawed. While the concept of preventive self-defense has evolved as an emerging norm of international law, it has not been universally accepted and countries, like the United States, that have relied on it, have been heavily criticized. When President Bush announced the infamous Bush Doctrine as justification for attacking Iraq, many world countries denounced this foreign policy and viewed the United States as an aggressor, not as a self-defender. President Obama runs the same risk with his justification of our involvement in Iraq. Al Qaeda is certainly present in Afghanistan, but this is not the only country where it hides. Its operatives train in Pakistan, Somalia, and other Arabian Peninsula countries. Does this mean that the United States should deploy troops everywhere in the world that Al Qaeda may have some presence? We cannot be everywhere at the same time, and we cannot possibly neutralize every terrorist operative. Counter intelligence should be our only strategy abroad, unless we have true evidence of an imminent threat of attack against us. Only then should we deploy thousands of troops, in the name of true self-defense. Otherwise, counter intelligence officials should protect our national safety, not thousands of soldiers. Afghanistan should not be another Iraq, and the Obama doctrine should not merge into the Bush doctrine.
I believe that the President is wrong in his strategy. Afghanistan looks like another Iraq: an unstable, ethnically diverse country, poor and potentially prone to housing terrorists. In Iraq, the United States sent troops in 2003 with the goal of quickly replacing the rogue Saddam Hussein regime. When commentators say that the surge in Iraq has worked, they imply that this goal has been accomplished. At what cost, however? In 2009, we are still in Iraq. Thousands of American soldiers have died, and so have countless Iraqis, caught up in so-called sectarian violence sparked through the American involvement. We have spent billions of dollars in Iraq, neglecting domestic problems and causing a major financial crisis at home. Now, soldiers are returning from Iraq to be immediately deployed in Afghanistan. It is likely that several years from now we will still be in Afghanistan, and that the surge there could work only if we sacrifice thousands of soldiers and billions of dollars....again. When Hillary Clinton and Robert Gates were questioned by the press about the 18-month deadline for the return of our troops home, they both fidgeted with their answers and admitted that the deadline was flexible, and that the President could always change his mind. 18 months means 18 months only if the President agrees, and in the summer of 2011, he may no longer agree.
Moreover, I believe that the President's justification for sending troops to Afghanistan is flawed. While the concept of preventive self-defense has evolved as an emerging norm of international law, it has not been universally accepted and countries, like the United States, that have relied on it, have been heavily criticized. When President Bush announced the infamous Bush Doctrine as justification for attacking Iraq, many world countries denounced this foreign policy and viewed the United States as an aggressor, not as a self-defender. President Obama runs the same risk with his justification of our involvement in Iraq. Al Qaeda is certainly present in Afghanistan, but this is not the only country where it hides. Its operatives train in Pakistan, Somalia, and other Arabian Peninsula countries. Does this mean that the United States should deploy troops everywhere in the world that Al Qaeda may have some presence? We cannot be everywhere at the same time, and we cannot possibly neutralize every terrorist operative. Counter intelligence should be our only strategy abroad, unless we have true evidence of an imminent threat of attack against us. Only then should we deploy thousands of troops, in the name of true self-defense. Otherwise, counter intelligence officials should protect our national safety, not thousands of soldiers. Afghanistan should not be another Iraq, and the Obama doctrine should not merge into the Bush doctrine.
Tuesday, November 3, 2009
Argentine Dictator Faces Justice: The End of Impunity
A former Argentine dictator and five others are now facing trial in Argentina for human rights abuses committed during the country's Dirty War (1976-83) (click here to read the story: http://www.cnn.com/2009/WORLD/americas/11/02/argentina.rights.trial/index.html)
The beginning of this human rights trial signals a shift in Argentine policy toward addressing past abuses. It has been 25 years since the right-wing dictatorship, during which thousands were tortured, murdered, or simply disappeared, crumbled. Yet, it is only now that some of those most responsible for such offenses are facing justice. The shift from impunity toward the reassertion of the rule of law and the imposition of appropriate punishment for those committing heinous human rights abuses has slowly taken place in Argentina. Other Latin American countries have similarly moved toward ending impunity. Chile has struggled with the decision to subject former dictator, Augusto Pinochet, to some form of prosecution, and has held him on a form of house arrest for the last decade. Uruguay and Paraguay have instituted commissions to deal with past human rights abuses. Elsewhere in the world, rogue leaders are facing justice. The Extraordinary Chambers in the Courts of Cambodia is a hybrid ad hoc tribunal, set up to prosecute high level officials of the Khmer Rouge regime, and the International Tribunal for the former Yugoslavia is currently prosecuting Radovan Karadzic, a former Bosnian Serb leader responsible for atrocities such as the Srebrenica massacre in 1995. International criminal law has become a hot body of law, embracing the concept of individual responsibility for human rights abuses. Argentina has finally confirmed that it respects international criminal law and that its commitment to human rights is firm in the 21st century.
The beginning of this human rights trial signals a shift in Argentine policy toward addressing past abuses. It has been 25 years since the right-wing dictatorship, during which thousands were tortured, murdered, or simply disappeared, crumbled. Yet, it is only now that some of those most responsible for such offenses are facing justice. The shift from impunity toward the reassertion of the rule of law and the imposition of appropriate punishment for those committing heinous human rights abuses has slowly taken place in Argentina. Other Latin American countries have similarly moved toward ending impunity. Chile has struggled with the decision to subject former dictator, Augusto Pinochet, to some form of prosecution, and has held him on a form of house arrest for the last decade. Uruguay and Paraguay have instituted commissions to deal with past human rights abuses. Elsewhere in the world, rogue leaders are facing justice. The Extraordinary Chambers in the Courts of Cambodia is a hybrid ad hoc tribunal, set up to prosecute high level officials of the Khmer Rouge regime, and the International Tribunal for the former Yugoslavia is currently prosecuting Radovan Karadzic, a former Bosnian Serb leader responsible for atrocities such as the Srebrenica massacre in 1995. International criminal law has become a hot body of law, embracing the concept of individual responsibility for human rights abuses. Argentina has finally confirmed that it respects international criminal law and that its commitment to human rights is firm in the 21st century.
Friday, October 9, 2009
The Goldstone Report: An Explicit Critique of Israel and Its Military Policy in Gaza
Justice Richard Goldstone formally presented to the Human Rights Council his Report of the United Nations Fact Finding Mission on the Gaza Conflict, released on Sept. 15, 2009 (click here to read the 600-page report: http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_Report.pdf). The Report related to the conflict between Israel and Hamas over a three-week period in Dec. 2008-Jan. 2009; it explicitly criticizes both Israel and Hamas for violations of human rights law and international humanitarian law. The Report, however, is widely seen as a condemnation of a long-lasting Israeli policy of military offensive against the civilian population of Gaza. The fact that the Report was drafted by Justice Goldstone, a prominent international jurist and a long-time supporter of Israel lends even more credence to some of the Report's allegations. The Report concludes that both Hamas and Israel committed international humanitarian law violations, but the majority of the Report's 20 + chapters focus on Israel. In particular, Israel is criticized for a range of acts, including abusive detentions, repression of dissent, a policy of indiscriminate military offensive against the people of Gaza, and many such acts, according to the Report, amount to violations of IHL and war crimes. The Report concludes that Israel is unlikely to establish any sort of a domestic accountability mechanism to punish perpetrators of these offenses; thus it recommends several international accountability measures. First, the Report calls for the UN Security Council to establish an independent committee of experts to monitor the situation. Second, the Report recommends that the UN Security Council refer this situation to the International Criminal Court, for a possible investigation. Finally, the Report urges other states to exercise universal jurisdiction and to indict perpetrators of the detailed offenses in their own domestic courts.
The implications of the Report are important and cause a serious risk for Israel. In fact, Israel has refused to cooperate with the Goldstone Mission, and has been issuing a series of answers and criticisms to the Report itself. This kind of behavior may be troubling for Israel, as it eliminates the possibility of seriously considering Israel as the proper forum to address any claims of IHL violations in Gaza. Moreover, European countries, some of which have already indicated a willingness to indict foreign leaders, may now have a complete evidentiary record of alleged violations in Gaza and may thus go forward with indictments and investigations of senior Israeli leaders and military commanders. It may be a better idea for Israel to seriously consider some of the Report's allegations and to provide an appropriate domestic alternative for possible investigations and prosecution. Such an approach by Israel would earn it international respect and credence for the claim that it's merely fighting terrorists in Gaza.
The Report certainly has its shortcomings too. First, any attempt to use the UN Security Council, as the Report speculates, will certainly fail as the United States has already expressed its unhappiness with the Report and unwillingness to allow for a Security Council probe into Gaza (click here to read the United States' response to the Report: http://geneva.usmission.gov/news/2009/09/29/gaza-conflict). Second, the Report fails to address a serious issue: the fact that Isreal has been engaged in so-called asymmetrical warfare in Gaza, and the fact that this new type of warfare calls for a modification of traditional IHL rules. Hamas has firmly embedded itself within the Gaza population, making it virtually impossible for Israeli military commanders to discriminate between military and civilian objectives. Any application of traditional IHL rules would certainly lead toward establishing criminal responsibility for Israeli military commanders; yet, such a result is unfortunate because it effectively prevents militaries from fighting terrorists any time terrorist mesh with civilians. The situation in Gaza is similar to those existing in many other regions: NATO faced the same dilemma when it decided to bomb the former Yugoslavia; the U.S. forces do as well in their fight against the Taliban in Afghanistan. While I am sceptical about some of the Israeli tactics and am concerned about the over-aggressive policy of military offensive against Gaza, I recognize the difficulty of fighting nontraditional wars, where military and civilian objectives blend and where protecting soldiers' lives may imply many civilian deaths. The Goldstone Report should have also recognized this difficulty, while condemning some Israeli actions and presenting a coherent peace plan.
The implications of the Report are important and cause a serious risk for Israel. In fact, Israel has refused to cooperate with the Goldstone Mission, and has been issuing a series of answers and criticisms to the Report itself. This kind of behavior may be troubling for Israel, as it eliminates the possibility of seriously considering Israel as the proper forum to address any claims of IHL violations in Gaza. Moreover, European countries, some of which have already indicated a willingness to indict foreign leaders, may now have a complete evidentiary record of alleged violations in Gaza and may thus go forward with indictments and investigations of senior Israeli leaders and military commanders. It may be a better idea for Israel to seriously consider some of the Report's allegations and to provide an appropriate domestic alternative for possible investigations and prosecution. Such an approach by Israel would earn it international respect and credence for the claim that it's merely fighting terrorists in Gaza.
The Report certainly has its shortcomings too. First, any attempt to use the UN Security Council, as the Report speculates, will certainly fail as the United States has already expressed its unhappiness with the Report and unwillingness to allow for a Security Council probe into Gaza (click here to read the United States' response to the Report: http://geneva.usmission.gov/news/2009/09/29/gaza-conflict). Second, the Report fails to address a serious issue: the fact that Isreal has been engaged in so-called asymmetrical warfare in Gaza, and the fact that this new type of warfare calls for a modification of traditional IHL rules. Hamas has firmly embedded itself within the Gaza population, making it virtually impossible for Israeli military commanders to discriminate between military and civilian objectives. Any application of traditional IHL rules would certainly lead toward establishing criminal responsibility for Israeli military commanders; yet, such a result is unfortunate because it effectively prevents militaries from fighting terrorists any time terrorist mesh with civilians. The situation in Gaza is similar to those existing in many other regions: NATO faced the same dilemma when it decided to bomb the former Yugoslavia; the U.S. forces do as well in their fight against the Taliban in Afghanistan. While I am sceptical about some of the Israeli tactics and am concerned about the over-aggressive policy of military offensive against Gaza, I recognize the difficulty of fighting nontraditional wars, where military and civilian objectives blend and where protecting soldiers' lives may imply many civilian deaths. The Goldstone Report should have also recognized this difficulty, while condemning some Israeli actions and presenting a coherent peace plan.
Friday, September 25, 2009
The Best Venue for the Prosecution of Terrorist Suspects: Federal District Courts
The Obama Administration seems committed to redefining the parameters of the Bush era “War on Terror,” by ensuring that terrorist suspects are detained and prosecuted in full compliance with both domestic and international legal standards. Such a commitment to the rule of law by the Obama Administration has entailed a re-evaluation of the Guantanamo detention policy, as well as a redrawing of the current prosecution system available for terrorist suspects.
The lingering issue that the Obama Administration will have to address in the future years is how to design the best system for the prosecution of terrorist suspects. Any prosecution system will have to reconcile the tension between ensuring that terrorist suspects are incapacitated from harming American interests while providing them with blind justice and meaningful legal rights. The Obama Administration has realized that the desire to curb terrorism must yield to our country’s commitment to an even, unbiased justice system. I firmly believe that terrorist suspects should be prosecuted in federal district courts, and that several such jurisdictions should be designated as “specialized” for this purpose. By determining a handful of federal district courts as apt to prosecute terrorists (i.e., courts such as the D.C. District Court or the Southern District of New York, which regularly handle difficult and legally complicated cases, and which see a high number of international issues within such cases), the Obama Administration would provide terrorist suspects with the best venues for the legal adjudication of their cases. Prosecuting terrorist in all of our federal district courts could lead toward inconsistent results and potential appellate circuit court splits on issues of enormous national importance. Thus, consolidating terrorism trials in specialized jurisdictions could lead toward a uniformity of results and the development of a unique body of elaborate rules of law, consistently applied by a handful of judges in geographically isolated districts. Moreover, adjudication of terrorism cases in our district courts would eliminate the need for special military commissions, which have functioned fairly well in the recent year, but which have been criticized by many for their procedural and legal shortcomings.
Terrorist suspects are just like any other criminal suspect; their only particularity is the potential to harm American interests in a catastrophic manner. As long as terrorist suspects are detained and then meaningfully prosecuted before competent judges, our national interests will be as protected as they would have been through a military commission system or some other way of adjudication falling short of federal district court proceedings. By prosecuting terrorist suspects in federal courts, the Obama Administration would convey to the rest of the world that the United States respects the rule of law, even when dealing with high value detainees and people as dangerous as Osama bin Laden. The difficulty of prosecuting terrorist suspects in federal courts could be lessened by ensuring that the most competent prosecutors are assigned to those cases, that the investigative authorities share information and data with such prosecutors to the fullest extent, and that the best judges and jurisdictions only hear these cases.
If terrorist suspects are prosecuted in district courts, this will have a positive effect on our interrogation policies as well. In other words, if interrogators know that the potential suspects will one day face a federal judge, applying American law and procedural standards, they will likely shy away from coercive techniques, knowing that information thereby yielded would be excluded from any subsequent trials. Moreover, if terrorist suspects are prosecuted only before a handful of our federal jurisdictions, such courts will become experts in national security law, the applicability of the Geneva Conventions and other aspects of international humanitarian law, as well as detention and interrogation techniques. Thus, prosecuting terrorist suspects in highly specialized and competent federal courts would uphold our traditional rule of law, while signaling our commitment to such rule of law to the rest of the world and contributing toward the development and evolution of specialized rules of international humanitarian law, elaborated through our own courts.
Terrorist suspects are human beings and deserve a full measure of justice, just like any other criminal suspect. The military commissions, developed under the Bush Administration, are an inferior mode of justice that the Obama Administration should shy away from. Prosecution in specialized federal district courts is the only manner in which our national security interests can be protected and our legal justice system upheld.
The lingering issue that the Obama Administration will have to address in the future years is how to design the best system for the prosecution of terrorist suspects. Any prosecution system will have to reconcile the tension between ensuring that terrorist suspects are incapacitated from harming American interests while providing them with blind justice and meaningful legal rights. The Obama Administration has realized that the desire to curb terrorism must yield to our country’s commitment to an even, unbiased justice system. I firmly believe that terrorist suspects should be prosecuted in federal district courts, and that several such jurisdictions should be designated as “specialized” for this purpose. By determining a handful of federal district courts as apt to prosecute terrorists (i.e., courts such as the D.C. District Court or the Southern District of New York, which regularly handle difficult and legally complicated cases, and which see a high number of international issues within such cases), the Obama Administration would provide terrorist suspects with the best venues for the legal adjudication of their cases. Prosecuting terrorist in all of our federal district courts could lead toward inconsistent results and potential appellate circuit court splits on issues of enormous national importance. Thus, consolidating terrorism trials in specialized jurisdictions could lead toward a uniformity of results and the development of a unique body of elaborate rules of law, consistently applied by a handful of judges in geographically isolated districts. Moreover, adjudication of terrorism cases in our district courts would eliminate the need for special military commissions, which have functioned fairly well in the recent year, but which have been criticized by many for their procedural and legal shortcomings.
Terrorist suspects are just like any other criminal suspect; their only particularity is the potential to harm American interests in a catastrophic manner. As long as terrorist suspects are detained and then meaningfully prosecuted before competent judges, our national interests will be as protected as they would have been through a military commission system or some other way of adjudication falling short of federal district court proceedings. By prosecuting terrorist suspects in federal courts, the Obama Administration would convey to the rest of the world that the United States respects the rule of law, even when dealing with high value detainees and people as dangerous as Osama bin Laden. The difficulty of prosecuting terrorist suspects in federal courts could be lessened by ensuring that the most competent prosecutors are assigned to those cases, that the investigative authorities share information and data with such prosecutors to the fullest extent, and that the best judges and jurisdictions only hear these cases.
If terrorist suspects are prosecuted in district courts, this will have a positive effect on our interrogation policies as well. In other words, if interrogators know that the potential suspects will one day face a federal judge, applying American law and procedural standards, they will likely shy away from coercive techniques, knowing that information thereby yielded would be excluded from any subsequent trials. Moreover, if terrorist suspects are prosecuted only before a handful of our federal jurisdictions, such courts will become experts in national security law, the applicability of the Geneva Conventions and other aspects of international humanitarian law, as well as detention and interrogation techniques. Thus, prosecuting terrorist suspects in highly specialized and competent federal courts would uphold our traditional rule of law, while signaling our commitment to such rule of law to the rest of the world and contributing toward the development and evolution of specialized rules of international humanitarian law, elaborated through our own courts.
Terrorist suspects are human beings and deserve a full measure of justice, just like any other criminal suspect. The military commissions, developed under the Bush Administration, are an inferior mode of justice that the Obama Administration should shy away from. Prosecution in specialized federal district courts is the only manner in which our national security interests can be protected and our legal justice system upheld.
Subscribe to:
Posts (Atom)
Posts
