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This chapter discusses the trial of alleged terrorists by special tribunals. It demonstrates that the right to equality before the courts — one of the most important aspects of the right to non-discrimination — protects foreign defendants from being treated differently on the basis of their nationality both in times of peace and armed conflict. The establishment of special tribunals that only have jurisdiction to try foreign terrorist suspects could therefore only be regarded as justified if it was supported by compelling reasons. Yet it is impossible to discern objective and reasonable grounds for subjecting foreign, but not domestic, terrorist suspects to a special trial system. Rather than being a suitable, and thus proportionate, means of protecting national security, the one-sided focus of such tribunal systems is motivated by political considerations and may have serious negative impacts on the legitimacy, and thus the effectiveness of anti-terrorism efforts.

An individual accused of involvement in terrorism must be brought to some form of trial, but the American criminal law process is inapplicable to the current conflict. To guarantee the suspect certain rights and privileges, the hybrid paradigm would provide the following: 1) lawful coercive interrogation of a suspect ranted Miranda protections; 2) remand hearings before a court designed to prevent indefinite detention; 3) the right to counsel of the suspect's own choosing; 4) admissibility of the intelligence information into trial; 5) bench trials before specially trained judges; 6) conviction based in part (but not more than 50%) on intelligence information; 7) sentencing guidelines; and 8) and right to appeal to an independent judiciary. The hybrid paradigm also calls for the Foreign Intelligence Surveillance Act (FISA) Court to become a domestic terror court premised on a Congressional amendment to Article III of the Constitution.

Following a trail of state documents, this chapter examines how the U.S. government produced not only a new rightless subject in the “enemy combatant,” but also a parallel, quasi-legal system created specifically to perform the workings of justice, while in fact maintaining conditions of rightlessness in the face of legal and political challenges. Based on research in the Torture Archives and records of the Department of Defense, I trace a legal history of these emergent subjects and systems by analyzing executive memos that circulated following September 11, 2001 attacks; federal court cases like Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008); and legislation like the Detainee Treatment Act (2005) and Military Commissions Act (2006, 2009). The chapter then focuses on the testimonies of enemy combatants, who seized the opportunities to speak before the quasi-legal stages of the Combatant Status Review Tribunals and military commissions to testify to the realities of rightlessness and leverage incisive critiques of U.S. state violence.

This chapter discusses trial and punishment for battlefield misconduct in the context of the United States “war on terror” since 2001, examining the basis for the use of military commissions to try violations of the law of war, as well as recent commission trials. It traces the development of the U.S. military commissions at Guantanamo, and the two Military Commissions Acts ultimately enacted to authorize them in the aftermath of the Supreme Court’s Hamdan v. Rumsfeld decision. Although there is nothing controversial in the use of military courts to compel compliance with the laws and customs of war, their use to try operatives captured in the course of the armed struggle against transnational terrorism is subject to considerable controversy. This chapter examines why such use can and should be considered legitimate, but also how this legitimacy is contingent on respecting substantive and procedural limitations that are inherent in the LOAC.

This chapter presents a translation of the Russian-language transcripts of the interview with Aleksandr Aleksandrovich Chikolini (1872–?), a Moscow sworn attorney before WWI, and a noncommissioned officer in the infantry reserves during 1914–1917. At the time of the February Revolution, his unit was deployed in the capital, patrolling parts of the city center. On 27 February 1917, he was among the first to join the powerful Military Commission and thus belonged to the small core group of military officers and civilians who led the effort to organize anti-government forces and to capture key military and government installations. This interview remains Chikolini's only recorded testimony. It offers a rare insider's account of the Military Commission's structure, composition, and its multitude of tasks by an intelligent, perceptive, well-informed participant with no particular political affiliation. Chikolini emphasizes the Military Commission's unparalleled contribution to the overthrow of the old regime.

This chapter focuses on the use of military commissions to prosecute terrorist suspects. This is interpreted as an extension of the Bush administration’s focus on prevention and a concern that federal courts were inappropriate for terrorists that were designated ‘enemy combatants’. The chapter introduces the debate over the applicability of the Geneva Conventions and the argument that as ‘unlawful combatants’ the enemy could be prosecuted for taking up arms against US forces. The continuity theme is illustrated with a discussion of President Obama’s use of reformed military commissions. While change is evident to the extent new incidents were treated as law enforcement issues, Obama found it too difficult politically to transfer high profile 9/11 detainees to federal courts.

President George W. Bush was willing to delegate large swaths of public policy to Vice President Dick Cheney. This chapter examines several cases of policy decisions that illustrate Bush's unwillingness to subject his policy preferences to expert scrutiny. It also considers his order that created military commissions to prosecute suspected terrorists in November 2001 and his decision to disband the Iraqi army in May 2000. Moreover, it demonstrates Bush's penchant to ignore or to dismiss the judgement of professionals in the executive branch by focusing on his decision to suspend the Geneva Conventions in the war on terror and his insistence that Saddam Hussein was connected to al-Qaeda and 9/11, despite CIA evidence to the contrary. Finally, it illustrates his broad assertions of presidential power with his order to the National Security Agency to conduct surveillance on Americans, without the warrants required by law, and his unprecedented use of signing statements. Most of these policy decisions were made and carried out through Cheney's mastery of the levers of power within the executive branch of the United States government.

This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war. After briefly reviewing some of the most relevant treaties relating to war and warfare, the chapter considers the Constitution’s distribution of war authority between Congress and the President. It then discusses how international law, including the provisions in the UN Charter relating to the authority of the Security Council, as well as collective self-defense treaties, might affect the President’s war authority. The chapter then shifts to the “war on terrorism” and discusses the relevance of international law, including the Geneva Conventions, to issues concerning the scope of the military’s detention authority in that conflict, with particular reference to the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. International law and other issues relating to the use of military commissions to try terrorist suspects are also considered. The chapter concludes by discussing legal debates relating to coercive interrogation and targeted killing.

The administration of justice was a source of major contention between the civil authorities and the military. The Military Governor closed the civil courts, whose functions were replaced with military commissions for serious crimes and provost courts for more minor crimes and violations of the General Orders, including absenteeism. Although the civil courts were allowed to reopen in January 1942 “as agents of the Military Governor,” their jurisdiction was limited to civil matters; habeas corpus remained suspended, and there were no jury trials. Only eight cases were tried by military commissions. Two were especially significant: that of Otto Kuehn, who became the only individual convicted of spying; and that of Saffery Brown, a part-Hawaiian laborer whose conviction for murder did much to mobilize civil libertarians against army justice. Of far greater impact on the civilian population were the more than 55,000 trials in the provost courts, with a single officer presiding (often without legal training), no regard for due process, no juries, no distinctions between juveniles and adults, and a conviction rate of close to 100 percent. Trials lasted only a few minutes each and sentences were harsh. These trials were among the most egregious features of martial law.

This chapter examines questions that a habeas corpus petition can ask but that the law of habeas itself does not answer—questions that are at the core of current debates about America's detention policy. These questions include whether suspected terrorists can be subjected to indefinite military detention and/or prosecuted before military commissions, or whether they instead should be charged and tried in the regular federal courts. While habeas corpus provides the opportunity for meaningful judicial review of executive action, the chapter argues that the mere availability of that review does not by itself resolve the underlying legal and constitutional questions surrounding the scope of the executive's legal authority to detain in counterterrorism operations or to hold individuals without criminal trial in the regular federal courts. It calls for a return to the long-standing practice of prosecuting suspected terrorists in civilian courts in place of indefinite military detention, military commissions, and hybrid proposals such as national security courts.

This chapter examines questions that a habeas corpus petition can ask but that the law of habeas itself does not answer—questions that are at the core of current debates about America's detention policy. These questions include whether suspected terrorists can be subjected to indefinite military detention and/or prosecuted before military commissions, or whether they instead should be charged and tried in the regular federal courts. While habeas corpus provides the opportunity for meaningful judicial review of executive action, the chapter argues that the mere availability of that review does not by itself resolve the underlying legal and constitutional questions surrounding the scope of the executive's legal authority to detain in counterterrorism operations or to hold individuals without criminal trial in the regular federal courts. It calls for a return to the long-standing practice of prosecuting suspected terrorists in civilian courts in place of indefinite military detention, military commissions, and hybrid proposals such as national security courts.

Post-9/11 American counterterrorism policy has strained legal prohibitions on arbitrary deprivations of life and liberty. This chapter surveys domestic and international legal norms governing killing and detention in peace and war and traces how Americans have justified breaking these rules over time. In cultures of exception, authorities invoked wartime necessity as well as explicitly racist logics to kill, deport, intern, and violate the due process rights of people deemed dangerous. During the Cold War, the United States secretly colluded with allied regimes to disappear dissidents. In the global war on terror, policymakers sought to legally rationalize immigration roundups, watch lists, indefinite imprisonment at Guantánamo Bay and elsewhere, military commissions, and targeted killing in reference to extant norms. Lawyers exploited loopholes and gaps in the law in order to claim that unlawful enemy combatants are subject to wartime detention, trial, and lethal targeting but do not enjoy the rights of lawful combatants.

This chapter discusses the promotion of international law as a means of addressing terrorism. It describes responses of the U.S. government to the 9/11 attacks and how these responses have often been in violation of international law.

This chapter examines the political backlash to the Supreme Court ruling in Hamdan v. Rumsfeld, which paved the way for the Military Commissions Act of 2006. It considers how the Bush administration, following its defeat in Hamdan, attempted to justify to the American public extrajudicial detention, military commissions, and torture and to institutionalize those practices through the Military Commissions Act, which purported to deny habeas corpus to noncitizens held as “enemy combatants.” This new legislation also undermined the Geneva Conventions, sought to immunize U.S. officials for past abuse of detainees, and revived military commissions. The chapter also analyzes the Supreme Court's decision in Boumediene v. Bush, in which it decisively rejected the president's claim that the Constitution was limited to the United States or to American citizens.

This chapter examines how habeas corpus emerged as a legal instrument for protecting individuals against unlawful imprisonment by the executive. It also considers the role of habeas during wartime; its resilience as a mechanism of securing judicial review; how it helps police the line between civilian and military authority as well as prevent arbitrary government action; repeated efforts by government officials to circumvent habeas corpus in cases such as detention of alleged terrorists indefinitely as “enemy combatants”; and the application of habeas corpus as a means for reviewing decisions by military commissions that try enemy soldiers for war crimes. Finally, it discusses how the courts have addressed the issue surrounding the availability of habeas corpus for prisoners detained and tried outside the sovereign territory of the United States.