Beyond the Court of Public Opinion: Military Commissions and the Reputational Pull of Compliance Theory

By Petty, Keith A. | Georgetown Journal of International Law, Winter 2011 | Go to article overview

Beyond the Court of Public Opinion: Military Commissions and the Reputational Pull of Compliance Theory


Petty, Keith A., Georgetown Journal of International Law


TABLE OF CONTENTS

  I. INTRODUCTION
 II. COMPLIANCE THEORY, REPUTATIONAL PULL, AND REPUTATION
     SHAPING
     A. An Historical Analysis of Compliance Theory
     B. The Reputational Pull of Compliance Theory
     C. Reputation Shaping, Political Discourse, and Advocacy
        Strategies
III. A CRITICAL ANALYSIS OF THE POPULAR PERCEPTION
     A. Historical Background: From Conflict to the Courts
        1. Military Commissions from 1776-1952
        2. Military Commissions in the Context of Modern
           Armed Conflict
     B. Military Commissions Act of 2006
        1. Regularly Constituted Court
        2. Military Commission Procedural Protections
           i. Procedural Protections in the MCA of 2006
          ii. Evidentiary Issues in the Military Commissions Act
              of 2006
        3. Domestic and International Compliance
 IV. PROACTIVE REPUTATION SHAPING AND INTERNALIZATION OF
     NORMS
     A. The Renewed Relevance of the Military Commissions
     B. The Current Interpretive Phase: Military Commissions v.
        Federal Court
  V. CONCLUSIONS AND RECOMMENDATIONS

I. INTRODUCTION

In July of 2008, just days before the first United States war crimes trial since the Second World War, the defendant's lawyers made a final effort to stay the proceedings. (1) Salim Hamdan's legal team argued before the District of Columbia District Court that the recently authorized habeas petitions (2) should not only allow challenges to the legality of detention, but also to the legal framework of the military commission that would try him. Allowing the trial to go forward, they argued, would be contrary to Hamdan's rights--a sentiment shared by many. Judge Robertson disagreed. Denying the defense request for injunctive relief, he stated, "[t]he eyes of the world are on Guantanamo Bay. Justice must be done there, and must be seen to be done there, fairly and impartially.... A real judge is presiding over the pretrial proceedings in Hamdan's case and will preside over the trial." (3) Today, once again, the eyes of the world are on Guantanamo Bay. After President Barack Obama revitalized the military commissions designed to prosecute terrorist suspects in May 2009, (4) Congress moved to adopt his proposed amendments. (5) In conjunction with these efforts, Attorney General Eric Holder announced that the accused coconspirators of the terrorist attacks of September 11, 2001, would be tried in federal court, while other alleged offenders would be tried by military commission. (6) These reform efforts must be viewed in light of the negative perception many have of the military commissions, and how this reputation generated a pull toward perceived compliance with the rule of law.

In the wake of the murder of nearly 3,000 people on September 11, 2001, it would seem unimaginable that a judicial process conceived to punish alleged terrorists would receive heightened criticism. Nonetheless, the negative reputation of the military commissions held by domestic and international commentators is well-known. (7) The process is described as "rigged," (8) Guantanamo Bay denounced as a "law-free zone," (9) and the procedures are contested as inconsistent with international legal obligations. (10) These perceptions resonate beyond public opinion, and must be viewed in light of a larger discourse among domestic and international actors of the legal framework applicable to military commissions. As a prescriptive contribution, this article argues for policy-makers to engage in the interpretive, discursive process of normative compliance theory when formalizing national security strategy. Applying this process will minimize the need to engage in post hoc reputation shaping and, more importantly, will facilitate internalization of applicable legal norms in counter-terrorism operations.

In this context, compliance theory seeks to explain why states comply with the rule of law. This article focuses on reputation, a common element among several competing theories of compliance, and its impact on a state's compliance with legal norms. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Beyond the Court of Public Opinion: Military Commissions and the Reputational Pull of Compliance Theory
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.