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
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. …