Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative and Policy Perspective

The military commissions scheme established by President George W. Bush on November 13, 2001, has garnered considerable national and international controversy. The commissions’ creation has focused significant global attention on the use of military courts as a mechanism to process and try individuals suspected of involvement in terrorist acts or offenses committed during armed conflict. Upon taking office in 2008 President Obama signed an executive order requiring the closure of the detention center at the U.S. Naval Base in Guantanamo Bay, Cuba within a year. In the intervening twelve months various alternatives were explored including freeing those prisoners whose petitions for habeas corpus were successful, placing other prisoners on trial before military commissions or civilian courts, and seeking an alternative holding location for those individuals likely to remain incarcerated without trial. Despite substantial hand wringing nationally and internationally, a substantial group of individuals remains incarcerated at Guantanamo and operational progress to the trial of some of them before a military tribunal continues. The Obama administration relinquished its earlier position that indefinite detention without trial was not acceptable in a democratic society, and reinstated the full, if moderately amended, operation of the military commissions. Framed by and against this political backdrop, this book addresses the phenomena of what the editors term “due process exceptionalism.” We use the term due process exceptionalism as an umbrella concept capturing a variety of state practices. It denotes the actions of executive and legislative branches in substantially modifying ordinary, well-accepted and long established due process practices and rules particularly in the criminal justice area. The exceptionalism is derived from modifications to the requirement that the state must generally respect and uphold all of the legal rights that are owed to a person under its control. Justifications for due-process exceptionalism are generally articulated as resulting from perceived challenge or threat, and they may be temporary or permanent.The essays included in this collection bring together the viewpoints of leading international, comparative, national security and historical legal experts from the United States and elsewhere. The collection also benefits from contributions by policy-makers who offer policy-oriented analyses of the structural, legal and political issues arising out of the use of exceptional courts and military commissions. These contributions include assessments of the relationship between exceptional courts and other intersecting and overlapping arenas in the context of U.S. domestic constitutional law, international law, international human rights law, and international humanitarian law; the patterns, similarities and disjunctions that emerge as we view the resort to such courts in comparative perspective; and the political and legal challenges that the creation or operation of such courts creates within states and for the international community.The book includes the following contributions:1. David Glazier, The development of an exceptional court: the history of the American military commission2. Carol Chomsky, Military Commissions in Historical Perspective: Lessons from the U.S. – Dakota War Trials3. Gary Solis, Contemporary Law of War and Military Commissions4. David Cole, Military Commissions and the Paradigm of Prevention5. Fiona de Londras, Prevention, Detention, and Extraordinariness6. Rona Gabor & Raha Wala, In Defense of Federal Criminal Courts for Terrorism Cases in the United States7. Stephen I. Vladeck, Exceptional Courts and the Structure of American Military Justice8. William C. Banks, Exceptional Courts in Counterterrorism: Lessons from the Foreign Intelligence Surveillance Act (FISA)9. Kent Roach, The Law Working Itself Pure? The Canadian Experience with Exceptional Courts and Guantanamo10. John Jackson, Vicious and Virtuous Cycles in Prosecuting Terrorism: the Diplock Court Experience11. Clive Walker, Terrorism Prosecution in the United Kingdom: Lessons in the Manipulation of Criminalization and Due Process12. Emmanuel Gross, Trying Terrorists: The Israeli Perspective13. Jayanth Krishnan & Viplav Sharma, Exceptional or Not? An Examination of India’s Special Courts in the National Security Context14. David Weissbrodt & Joesph Hansen, The Right to a Fair Trial in an Extraordinary Court15. Alex Conte, Approaches and Responses of the UN Human Rights Mechanisms to Exceptional Courts and Military Commissions16. Steven Greer, Exceptional Courts and the European Convention on Human Rights17. Yuval Shany, The Legitimacy Deficit of Exceptional International Criminal Jurisdiction

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