Certain features of the war on terrorism impose novel and controversial punishment schemes. For example, President George W. Bush has unilaterally invoked executive authority to detain thousands suspected of terrorism over protracted times and to create military tribunals. The government has imprisoned two American citizens, denying them access to counsel for more than a year, and it has incarcerated 650 individuals without process at Guantanamo Bay. Bush administration officials recently announced that they would try some Guantanamo detainees in military commissions; however, these bodies will accord fewer protections than the civilian system or even courts-martial under the Uniform Code of Military Justice.
The federal judiciary has differed about the government's power to confine those incarcerated. The Supreme Court recently granted certiorari on divergent Second, Fourth, and D.C. Circuit holdings, and it may well review a Ninth Circuit appeal involving a writ of habeas corpus which one prisoner filed, even though the Justices declined to hear several cases that involve the war on terrorism.
Indefinite detentions and military tribunals warrant legal, policy, and theoretical criticism. As general matters, the practices undermine the rule of law domestically by violating fundamental tenets in the United States Constitution and overseas by flouting established international law precepts. The actions specifically contravene separation of powers among the federal government's tripartite branches, as well as infringe on essential rights of persons held and the defendants whom military commissions will try. The conduct also resembles other nations' behavior that America has vociferously criticized. The war on terrorism, thus, has fostered the creation of disputed punishment regimes that do not account for their impacts and that overemphasize security vis-a-vis liberty. These ideas, especially Supreme Court willingness to address the most important litigation pitting national security against civil liberties in half a century, illustrate that punishment and the war on terrorism merit scrutiny, which this Article undertakes.
The first section descriptively assesses the new, contested punishment systems the Bush administration has used to fight the war on terrorism. I then explore the benefits and costs of the measures whose principal functional justification is national security, but determine that the techniques are not responsive to their adverse consequences. For instance, the regimes may have enhanced security yet have undercut detainees' civil liberties and will compromise the rights of individuals prosecuted before the military tribunals. In short, the detriments, namely which relate to civil liberties, outweigh the advantages, particularly the ones that implicate security. The war on terrorism's continuation will exacerbate this ratio, as the government detains, and military commissions try, more people. The third section, accordingly, proffers recommendations for the future. Illustrative is using federal courts or international tribunals, not military commissions, to prosecute defendants accused of terrorism. These options would reduce authority's concentration in the Executive Branch, will undermine civil liberties and global relationships less, and could protect security as much.
Carl Tobias, Punishment and the War on Terrorism, 6 U. Pa. J. Const. L. 1116 (2004)