Guantanamo and Beyond: Dangers of Rigging the Rules
Foley, Brian J., Journal of Criminal Law and Criminology
Why are U.S. officials imprisoning and interrogating people about terrorism who are unlikely to know anything about terrorism? Why have U.S. officials created an entirely new justice system, which is now in effect at the prison for "enemy combatants" at the U.S. Naval Base at Guantanamo Bay, Cuba, rigged to perpetuate this practice? These questions are rhetorical, to point out what at bottom is occurring at Guantanamo. (1) This Article will show that this new justice system (2) does not work to reduce the risk of terrorist attacks, which is presumably the purpose of Guantanamo and the "War on Terrorism." Instead, it does just the opposite.
Rigging the rules to make it easier for tribunals at Guantanamo to conclude that people are terrorists paradoxically makes it harder to investigate terrorism and capture terrorists. That is, rigging the rules in favor of the hunters actually helps the hunted avoid capture. The reason is straightforward: people commit terrorist acts. In order to prevent a terrorist attack, the people planning it must be identified and interdicted. A system that fails to identify these people fails to prevent terrorist attacks. (3)
But what have gone unrecognized are the dangers that come from undisciplined information gathering, that is, from wrongly identifying people as terrorists ("false positives"). Fundamentally, identifying the wrong people can lead investigators away from the right people and make it more likely that any actual terrorists will be able to carry out their plans. (4)
This Article directly challenges the effectiveness of the Guantanamo policy for thwarting terrorist attacks by challenging the general proposition that loosening judicial standards for detaining and convicting suspected terrorists helps prevent terrorism. Part II of the Article sets forth the necessary background showing how the rules at Guantanamo are rigged. I examine the rules of the Combatant Status Review Tribunal ("CSRT"), which purportedly provides a forum for prisoners to challenge the government's case that they are "enemy combatants" (a term that, for the purposes of this Article, I will use interchangeably with "terrorist" (5)), to show that the CSRT cannot be relied upon for accurate findings. Instead, it can be relied on only to ensure that anyone detained will remain detained. I also explain how the U.S. Supreme Court, in Hamdi v. Rumsfeld, (6) unfortunately helped lay the groundwork for the CSRT's rigged rules. I examine the rigged rules for the Administrative Review Board ("ARB"), which is set up to review annually a prisoner's dangerousness, and the rules for the military commissions, which the Bush Administration has created to make it easy to convict enemy combatants for particular war- and terrorism-crimes.
Part III is the heart of the Article. I show how these rigged rules are dangerous because they negatively impact the accuracy of terrorism investigations. The CSRT and military commissions actually foster the gathering of false confessions and other false information from suspected prisoners, which can mislead investigators. Part of the problem is the aforementioned fact that coercive interrogation techniques are applied to prisoners who lack relevant knowledge of terrorism. There are other problems as well. A system designed to help the government win its cases can lead investigators to apply less rigor than they would need to win in a regular court system. Consequently, they learn less about the terrorist networks they must disrupt.
Part IV proposes that new rules dedicated to reaching accurate determinations of terrorist status and individualized guilt for terrorist crimes be designed and implemented as a productive tool in the War on Terrorism. I make some suggestions for the form some of those rules should take.
B. BACKGROUND: WRONG DEBATE, WRONG PREMISES--NATIONAL SECURITY AND CIVIL LIBERTIES ARE NOT DICHOTOMOUS
The dangers I discuss were not exposed earlier because the debate about Guantanamo has been framed by the larger, venerable debate that sees the relationship between national security and civil liberties as dichotomous. …