On January 22, 2009, US President Barack Obama, in one of his first official acts, issued an executive order requiring the closure of the controversial detention facilities at Guantanamo Bay, Cuba and halting the equally contentious military commission proceedings. The order, an abrupt shift in US policy, requires a mandatory review of the factual and legal basis for continued detention of the remaining detainees with the stated goal of determining their final disposition. Dependent upon the review’s findings, possibilities for the detainees include release, transfer, prosecution in a US federal court, or, if necessary, some other form of disposition.
The executive order’s repudiation of the military commissions and acceptance of US federal courts as the preferred venue to try the “hard cases”—referring to the cases involving those detainees deemed unsuitable for release or transfer--is vindication for those who have long championed the need to replace the commissions with federal trials. Believing that military commissions are patently unfair, biased, and irreparable, opponents of the Guantanamo prosecutions view trials in US federal courts as the practical, equitable alternative. Additionally, proponents of this idea, concerned with the fierce international condemnation of the military commission system, argue that affording the most dangerous and difficult detainees the constitutional protections embedded in US jurisprudence will silence critics and restore the United States’ international moral stature. However, this faith in the “cure-all” capabilities of the US federal court system is misguided due to two glaring and irresolvable problems.
First, the detainees were not arrested in a domestic law enforcement operation. The individuals held at Guantanamo were captured in combat or transferred to US custody from another country. Information collected by service members on the battlefield, or by a nation such as Pakistan, was never envisioned for use in a US court. Most information relied upon to detain these individuals would, therefore, be excluded under the rules of evidence or unavailable due to its classification. The inadmissibility of the majority of evidence would force the government to either allow trials to proceed with insufficient evidence, most likely resulting in acquittals, or avoid trial and rely upon a preventive detention measure to indefinitely imprison detainees for security reasons. Acquittal, based not upon innocence but due to evidentiary and procedural issues, is simply an untenable result. Equally impractical is indefinite detention, even in a new location, as this simply presents the same troubling moral dilemmas derided by critics of Guantanamo.
Second, the belief that the international community, and in particular Muslim nations, would consider a trial in a US court, presided over by an American judge, as different from a military commission is naïve. Missteps in interrogation techniques coupled with extraordinarily negative reports concerning US detention policies and facilities have entrenched suspicion throughout the world of all American judicial institutions. Unwilling to believe that a Guantanamo detainee could receive a fair trial in a US venue, and unable to distinguish between a military commission and a federal court, the vast majority in the international community will perceive any US court proceeding as simply a smoke screen for the inevitable harsh penalty. Regardless of the forum, an American-centric trial will be viewed with skepticism and perceived as the United States invoking "victor's justice.”
The inability of US courts to adequately handle these trials and the political impossibility of continuing the military commissions raises the obvious, yet difficult question: what is the proper venue for trying the Guantanamo “hard cases”? Further, how does the United States balance its competing interests of holding accountable those culpable individuals while reclaiming its international leadership in promoting adherence to the rule of law?
The admittedly challenging answer is for the United States to shift away from a unilateral approach to the prosecutions and instead find an international forum to try the remaining Guantanamo detainees. International forums are generally accepted as the proper setting for dispensing justice when international atrocities, such as crimes against humanity, war crimes, and, arguably, terrorism, are committed. Recognition of the benefits and necessity of a collective response to transnational crimes has steadily increased within the global community since the genesis of international criminal proceedings at the Nuremburg trials through the recent and on-going International Criminal Court (ICC) hearings of the Congolese warlord Thomas Lubanga. The United States, historically an aggressive advocate for international criminal justice, agrees that international forums have unique capabilities and trump the jurisdiction of domestic courts in certain scenarios.
In recent comments to the Fletcher School of Law and Diplomacy, Mr. John B. Bellinger, III, the former Legal Adviser to the Secretary of State, noted that “we believe that fostering domestic institutions is central to the promotion and development of the rule of law. In appropriate circumstances, however, international tribunals can supply the resources or technical capacity that local courts may lack; they can provide legitimacy and fairness where local institutions are inchoate or mistrusted; and most important, they can provide the political will to carry out justice where that will is absent, or insufficient, at the domestic level.” Though Mr. Bellinger’s remarks were not intended to highlight the inadequacies of holding trials for the Guantanamo detainees in U.S. federal courts, his point is relevant to the current debate.
Specifically, the United States, in agreement with the international community, believes that when domestic courts are mistrusted, incapable, and perceived as illegitimate in prosecuting transnational crimes, this results in a credibility and accountability vacuum that only international trials are capable of filling. However, the United States is planning on prosecuting the Guantanamo detainees in domestic courts doubted by many as fair. These two positions are irreconcilable and until the US concedes that an international forum must supplant federal courts in the prosecutions, the trials will continue to be mistrusted and stigmatized.
An international venue also offers the distinct advantage of procedural flexibility. In comparison to the concrete and formal structure of the US federal court system, an international proceeding is malleable and may be constructed to address difficult questions concerning transparency, accountability, and with some creativity, source protection. Created to address crimes that transcend geography and domestic law, an international tribunal is, or can be, equipped and structured to address the unique procedural and admissibility challenges presented by prosecuting the remaining Guantanamo detainees.
Existing international forums are possible options for prosecuting the Guantanamo detainees, or, at a minimum, provide a rough framework for a newly constructed tribunal. The ICC, though an unrealistic venue option for the Guantanamo detainees’ trials due to jurisdiction limitations and US non-participation in the court, provides a template for determining what an appropriate international forum could resemble. A permanent institution with a focus on the most serious of global crimes, the ICC offers useful definitions, procedures, possible structure, and responsibilities of international actors. A UN ad hoc international tribunal, similar to the International Criminal Tribunal for the Former Yugoslavia (ICTY), is also a possible forum model. Non-permanent and narrowly focused on a specific conflict, a UN ad hoc tribunal would not present a long-term solution to terrorist prosecutions, but would provide an opportunity for the United Nations to collectively build a venue with the requisite jurisdiction, procedures, and evidentiary rules needed for prosecuting the “hard cases.” Finally, a hybrid between an international and domestic tribunal, such as Special Court for Sierra Leone, while it has limited relevance to prosecuting the Guantanamo detainees due to the transnational nature of the crimes, does supply attractive methods to decrease costs and increase procedural efficiency.
Most likely, an international criminal trial for the Guantanamo detainees would require a new venue that would be an amalgamation of the existing international institutions, with special procedures addressing the unique issues surrounding the “hard cases.” Whether this new venue resembled a UN ad hoc criminal tribunal, the International Criminal Court (ICC), or a hybrid court, a new international institution would offer an opportunity to design a workable and realistic process. As a result, an international trial would not be burdened by impractical procedural rules, in contrast to the rigid US federal court system, allowing for effective and focused prosecutions.
The benefits of an international forum are not limited to simply addressing the credibility and procedural problems of US federal trials, but include numerous ancillary advantages. Internationalizing the trials allows the global community, and in particular other nations affected by terrorism, to voice their often-muted opinions, helping to repair frayed alliances between the United States and many slighted allies. Crafted through international negotiations, including Muslim nations, these international trials will marginalize extremist propaganda by preempting claims that the West is “crusading” against Islam. Additionally, trials at an international venue will create a universal process for punishing transnational criminal behavior and establish precedent for future prosecutions of non-state terrorist activity. Finally, and most importantly, using an international forum allows the United States to escape the harmful perception that it is hostile to multilateralism and isolated in its war against terrorism. A good faith demonstration by the United States that it still values world opinion and wants to include the global body in the trials will add needed legitimacy to the prosecutions, discredit accusations of US arrogance, and help universalize the criminality of terrorist behavior.
Of course the viability of an international criminal trial for the Guantanamo “hard cases" is unclear. Immense challenges concerning jurisdiction, prosecutorial discretion, accountability, bureaucratic lethargy, objectiveness, and transparency significantly impede the use of an international criminal trial for the Guantanamo detainees. Though these issues are problematic, a solution is possible. Rather than recycling the endless debates over the legitimacy of military commissions versus the viability of the federal court system, it is time to broaden the discussion to include international criminal proceedings.