Terrorist Due Process WNDI

West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism
Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens
Drake Skaggs Whitman College
Contents
Drake Skaggs ..................................................................................................................................................................1 PART III: SHORT ESSAY ...................................................................................................................................................5 PART IV: DEFINITIONS ....................................................................................................................................................6 Many of the terms in this resolution can be contextually defined and as such do not need an explicit definition. The term non-citizens accused of terrorism, for example, is fairly self-explanatory and it is unlikely that, after listening to a case, a judge would need the distinction between the former and citizens explained to them. The phrase constitutional due process protections almost requires a contextual definition: as explained above, due process protections could refer to virtually any part of the law. Each team would do well to explain briefly in their definition of due process which aspects of the law they are referring toI suggest focusing on the right to a fair, speedy trial in front of a jury and the rights concerning cruel and unusual punishment. Following are three terms that can and should be defined, followed be a discussion of their usage in round. ........................................................................................................................6 Ought .....................................................................................................................................................................6 PART V: AFFIRMATIVE ...................................................................................................................................................8 SECTION 1-SAMPLE AFFIRMATIVE CASE ........................................................................................................................8 Alberto Mora, former US Navy General Counsel...........................................................................................................8 http://armed-services.senate.gov/statemnt/2008/June/Mora%2006-17-08.pdf ........................................................8 Deterrence of Terrorists is Impossible .....................................................................................................................11 Deterrence fails because US foreign policy is based on US morals .....................................................................11 Deterrence fails because the US is not willing to abandon its moral authorityand terrorists know this ........12 Deterrence will never work until the US can make it clear to terrorists that they will go to any lengths to punish terrorismwhich wont happen..............................................................................................................12 American Military Policy invigorates terrorists ...................................................................................................12 Poor Treatment of Detained Non-Citizens Leads to Increased Terrorism ...............................................................13 Wrongful preventive detention discourages civilians from cooperating to fight terrorism ................................13 Inhumane detention practices are directly responsible for massive terrorist recruitment ................................13 Terrorists share a collective identity, meaning an attack on 1 is an attack on all ...............................................13 Conventional Justice System Can Conduct Terrorist Trials/Detention ....................................................................15 US court system has a history of dealing with security threats despite due process ..........................................15 Trying people for conspiracy means a crime doesnt need to be committed to convict ....................................15 The conventional system is more efficient than military tribunals .....................................................................15 Secrecy is empirically safe in the conventional system thanks to CIPA ...............................................................16 Life in Detention Is Terrible .....................................................................................................................................17 Prisoners are interrogated frequently and violently ...........................................................................................17 Prisoners are heavily controlled and rarely get to leave their cells .....................................................................17 Prisoners who dont submit to interrogation are abused ...................................................................................17 Torture is commonplace and accepted in detention centers ..............................................................................17 MCA Yes plus Turn: MCA expands enemy combatants; Court will uphold now .....................................................19 MCA Yes plus Turn: Court will uphold MCA; only Plan stops it ...............................................................................20
West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism MCA Turn: MCA expands enemy combatant status ................................................................................................21 MCA Turn: Plan stops enemy combatants in MCA ..................................................................................................22 MCA Turn: Grossly expands enemy combatant definition ......................................................................................23 MCA Turn: ICCPR bans the MCA ..............................................................................................................................24 PART VI: NEGATIVE ......................................................................................................................................................25 SECTION 1-SAMPLE NEGATIVE CASE ...........................................................................................................................25 Hello ladies and gentlemen, I would like to begin by thanking my opponent and the judge for being here today. I am here to negate the resolution Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens. Before presenting my value, criterion and contentions, I will clarify a key term in todays debate. ........................................................................25 I would like to counter-define ought as used to express obligation from Merriam-Webster. This definition is preferable to the affirmatives as it removes the morality aspect which serves only to skew the debate towards the aff. ................................................................................................................................................................................25 Conventional System Wont Work for Terrorist Suspects .......................................................................................28 Usage of the conventional system has many problems ......................................................................................28 Using the conventional system breeds security concerns ...................................................................................28 Using the conventional system requires the release of sensitive information ...................................................28 Using the conventional system requires the release of sensitive information ...................................................29 Conventional systems standard of proof is too high to apply to terrorist safely ...............................................29 Conventional Prisons Breed Terrorists ....................................................................................................................30 US Correctional Institutions allow terrorist recruitment .....................................................................................30 Radical Islamic movements convert disaffected prisoners .................................................................................30 Terrorist recruitment happens because of radical prisoners ..............................................................................30 The conventional system needs changing ...............................................................................................................32 There are underlying public policy problems plaguing detention policy ............................................................32 The best approach is to fix the law before moving forward ................................................................................32 Future terrorist suspects need an avenue for detention and prosecution .........................................................32 Empirically, federal court prosecution of terrorist suspects is difficult ...............................................................33 Which constitutional protections apply to terrorist trials needs to be determined ...........................................33 Military Commissions are an Acceptable Form of Justice .......................................................................................34 Military commissions are historically fair ............................................................................................................34 Military commissions offer protection to detainees ...........................................................................................34 The President clearly holds the power to convene military commissions ..........................................................34 Tribunals make the prosecution process much easier, more streamlined..........................................................35 1NC Frontline 1/3 ....................................................................................................................................................36 1NC Frontline 2/3 ....................................................................................................................................................37 1NC Frontline 3/3 ....................................................................................................................................................39 Quirin Key to Commissions ......................................................................................................................................41 Commissions Good MCA Solves ...........................................................................................................................42
West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism Commissions Good ECS ........................................................................................................................................44 Commissions Good Flexibility ...............................................................................................................................45 Commissions Good Defendant Rights ..................................................................................................................46 Commissions Good Due Process ...........................................................................................................................47 Commissions Good Review ...................................................................................................................................48 Commissions Good Increasing Due Process Indefinite Detention ........................................................................48 Commissions Good Post Hostilities Imprisonment ...............................................................................................49 Civilian Courts Bad General ..................................................................................................................................51 Civilian Courts Bad Not for ECS .............................................................................................................................52 Civilian Courts Bad Terrorism ...............................................................................................................................53 Civilian Courts Bad Terrorism ...............................................................................................................................54 A2: Commission Bad Offense...................................................................................................................................55 A2: Tribunals arent Competent 1/2 ........................................................................................................................56 A2: Tribunals arent Competent 1/2 ........................................................................................................................57 A2: Al Qaeda should get comp Tribunals 1/2 ..........................................................................................................58 A2: Al Qaeda should get comp Tribunals 2/2 ..............................................................................................................58 NATIONAL SECURITY IS THE PARAMOUNT VALUE ..................................................................................................60 THE TERRORIST THREATS TO NATIONAL SECURITY ARE GRAVE ..............................................................................61 SECURITY CONCERNS JUSTIFY CIRCUMSCRIBING RIGHTS .......................................................................................62 LIMITING RIGHTS IS NECESSARY TO PRESERVE SECURITY .......................................................................................63 LIMITING SOME RIGHTS IS CRITICAL TO KEEPING OTHER RIGHTS ..........................................................................64
PART III: SHORT ESSAY

This resolution asks debaters to interrogate one of the most contentious areas of United States foreign policy: its detention centers and treatment of non-citizens accused of terrorism. It creates a space not only for the discussion of torture and detention practices but also for a discussion of military tribunals, the conventional court system, and due process rights generally. As the resolution specifies constitutional due process protections, debaters would be well served by focusing on constitutional text as the basis for their definition of due process protections, especially considering due process technically refers to all aspects of the law. The two most critical aspects of due process law as pertaining to this topic are the right to a speedy trial in front of a jury and the right to avoid cruel and unusual punishment. The non-citizen prisoners in question are currently ushered through a closed military tribunal system instead of the conventional court system, and many sit in custody for years without a charge ever being brought against them. The government justifies this by arguing from a model of preventive justice: if suspected terrorists are detained before they can commit acts of terrorism, a crime does not need to be committed to detain them. Simply put, the President retains the right to detain anyone he deems to be connected in any way to terrorist elements. If these individuals happen to be non-citizens, they have no due process rights usually granted to citizens accused of crimes. Military tribunals are very different from the conventional court system. They take place behind closed doors and are staffed almost exclusively by members of the military. Rules for evidence are less strict than civilian courts, allowing hearsay evidence to be considered. Instead of a jury, there rd is a panel of 3-7 members of the military that need only reach a 2/3 consensus to convict someone on trial. Conventional arguments against the USs current policy center largely around the poor treatment of people kept in detention centersa quick internet search will turn up numerous horror stories of torture and cruel interrogation practices conducted by the guards of Guantanamo Bay, Abu Grahib and other detention centers. The US has different classifications of individuals, and it is important to note that the only individuals being discussed by the resolution are classified as unlawful enemy combatants, lacking allegiance to a specific country that is sanctioning their hostilities. The affirmative has two main directions it can choose when constructing a case: the moral standpoint and the practical standpoint. The moral standpoint focuses on arguments condemning the atrocities committed in detention centers. Choosing a value of morality or equality allows the affirmative to put all of its resources into convincing the judge that poor detention practices violate individual rights to such an extent that they can never be justified. This standpoint is likely fairly predictable, but it also forces the negative to enter into the value debate or try to defend torture. The second major branch of affirmative cases discusses the topic from a practical standpoint. Cases constructed along these lines will base their arguments on the physical, wide-reaching effects caused by the USs choice to detain non-citizens without due process. Arguments that preventive detention doesnt solve anything are good, as are arguments that giving due process rights to non-citizens wouldnt harm anyone in the long run. The affirmative can also say that the USs practices actually increase terrorism worldwide as terrorist organizations point the US torture practices as a symbol of an evil western government. The practical strategy has major benefits insofar as it will likely catch negative teams off guardthey were hoping to read their arguments about national security being served by detention centers, and instead will have to scramble to answer your arguments to the contrary. The negative side of the argument is a bit harder. One idea is to argue that constitutional due process rights have already been extended by the Supreme Courttheyve taken cases on this issue and made their rulings, thus constitutionally drawing a distinction between citizens and non-citizens. Possibly the strongest line of argument, however, is to claim that the conventional court system would be completely unable to handle terrorist trials (and no other system could be used if due process protections were offered to non-citizens). There are major security concerns, secrecy concerns (military tribunals are closed while conventional trials are open), and evidence concerns (some evidence usable in tribunals is not allowed in conventional trials). Additionally, the conventional prison system would put terrorists in direct contact with disaffected citizens who may be radicalized and go on to commit terrorist acts once they are released from prison. All in all, the topic allows for great leeway on either side of the debate and the evidence base is such that crafting a case to best suit ones interests should not be a difficult task for debaters.
PART IV: DEFINITIONS

Many of the terms in this resolution can be contextually defined and as such do not need an explicit definition. The term non-citizens accused of terrorism, for example, is fairly self-explanatory and it is unlikely that, after listening to a case, a judge would need the distinction between the former and citizens explained to them. The phrase constitutional due process protections almost requires a contextual definition: as explained above, due process protections could refer to virtually any part of the law. Each team would do well to explain briefly in their definition of due process which aspects of the law they are referring toI suggest focusing on the right to a fair, speedy trial in front of a jury and the rights concerning cruel and unusual punishment. Following are three terms that can and should be defined, followed be a discussion of their usage in round. Ought Definition: used to express justice, moral rightness, or the like Source: Dictionary.com Definition: That which should be done, the obligatory; a statement using ought, expressing a moral imperative Source: Oxford English Dictionary Definition: used to express obligation Source: Merriam-Webster Discussion: The meaning of the term ought does not frequently change in most LD debates, but these different definitions can yield very different cases. The affirmative on this topic should consider choosing the first or second definition as the language is stronger and more easily tie in with a value of justice or a case that stresses the moral imperative of not subjecting prisoners to torture and the like. The negative will likely be better served by the third definition as the language is less strong, though s/he should be able to argue within either of the other definitions as well. Extend Definition: to increase the scope, meaning, or application of Source: Merriam-Webster Definition: to increase in length, area, scope, etc Source: Dictionary.com Discussion: Defining this term in the debate round is only really necessary if you worry that the other team is planning to argue that extend should be a physical action (i.e., physically hand prisoners a copy of constitutional due process protections but do nothing to actually help them). Due Process Definition: the regular administration of the law, according to which no citizen may be denied his or her legal rights and all laws must conform to fundamental, accepted legal principles, as the right of the accused to confront his or her accusers Source: Dictionary.com Definition: a course of formal proceedings (as legal proceedings) carried out regularly and in accordance with established rules and principle
West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism Source: Merriam-Webster Discussion: For a complete discussion of due process and how it relates to the topic, please see Section I Part I. When defining due process, it is important to couch the definition in terms of constitutional protections. The negative is likely best served by using the first definition as it explicitly says due process of law applies only to citizens. The affirmative could use the first definition as well if they stopped the definition after the first six words then clarified their meaning in terms of constitutional protections.
PART V: AFFIRMATIVE
SECTION 1-SAMPLE AFFIRMATIVE CASE our Nations policy decision to use so-called harsh interrogation techniques during the War on Terror was a mistake of massive proportions. It damaged and continues to damage our Nation in ways that appear never to have been considered or imagined by its architects and supporters, whose policy focus seems to have been narrowly confined to the four corners of the interrogation room. This interrogation policy which may aptly be labeled a policy of cruelty violated our founding values, our constitutional system and the fabric of our laws, our over-arching foreign policy interests, and our national security. The net effect of this policy of cruelty has been to weaken our defenses, not to strengthen them, and has been greatly contrary to our national interest. Alberto Mora, former US Navy General Counsel http://armed-services.senate.gov/statemnt/2008/June/Mora%2006-17-08.pdf Hello ladies and gentlemen. I would like to begin by extending a quick round of thank yous to all involved. Today we are debating the resolution: Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens. Before presenting my value, criterion and contentions, I will clarify a few of the key terms in todays debate. I define ought as a term used to express obligation (Merriam-Webster) extend as to increase the scope, meaning, or application of (Merriam-Webster) non-citizens accused of terrorism as unlawful enemy combatants apprehended or suspected of terrorism by the United States, including those currently held at Guantanamo Bay and other detention centers, and Due process as the regular administration of the law, (Dictionary.com) in this case, specifically those parts of the law dictating the rights of the accused, including the right to a speedy trial and protections against indefinite detention without charge and cruel and unusual punishment. All other terms are contextually defined. Value: National security My value today is national security, an extension of the most basic of all values, safety. National security is the prerequisite to all other values, because without a stable nation to inhabit, citizens have no ability to freely pursue any other values. Criterion: Minimization of terrorist threats My value criterion is the minimization of terrorist threats. This is a very straightforward way to solve for national security: simply put, the biggest threat to our nation today is terrorism. As the US has the largest and most powerful military in the world, we have very little to fear from other military powers. As 9/11 proved, the only hostile forces that can actually damage our nation are terrorist elements. Based on this value and criteria, I would like to present three contentions. Contention 1: Military deterrence of terrorists is impossible The United States has been locked in a bloody, casualty-filled war against terror for the last 10 years, and yet the threat of terrorism does not seem to have decreased at all. Al-Qaeda leaders are still operating underground terrorist organizations in Iraq, Afghanistan, and all over the world. There have been attempted bombings in many th th countries, including the 7 of July 2005 terrorist attacks in London and the December 29 , 2009 attempted Christmas Bombing. The USs military policy is clearly not leading to a decrease in terrorism. This is because large-scale deterrence of terrorism is impossible. Terrorists view American military elements as a long arm of a Western power that they hate due to its poor foreign policy choices (as well as a liberal dose of fanaticism among terrorists). Our military conflicts have only provoked an increase in terrorist recruitment. Our military lacks to ability to even threaten what terrorists wish to be kept safe.
West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism Uri Fisher PhD candidate in Political Science at the University of Colorado-Boulder, February 2007, Deterrence, Terrorism, and American Values. Homeland Security Affairs Volume 3, no. 1, http://www.hsaj.org/?article=3.1.4 Concern over the cost of compromising our ideals undoubtedly undermines efforts to make our enemies believe we are willing to punish them no matter at what expense. To effectively deter terrorists the U.S. will have to accept the price that comes with violating some human rights, responding with overwhelming force, alienating certain allies, and even eliminating those assets and people that terrorists may hold dear. Any discussion of deterrence that fails to acknowledge the necessity to implement such policies belongs only in ivory towers where the theoretical does not have to be tested by the practical. Deterring terrorists will not happen with strong policy statements alone, it will only happen if the U.S. can clearly illustrate to terrorists and their supporters that they will feel significant pain as the result of their actions. If our military might is not reducing the risk of terrorism, clearly traditional notions of what constitutes a nation that can adequately protect its people need to be revisited. Clearly, the United States needs to begin pursuing a different course of action to reduce the risk of terrorism. One way to solve this national security crisis is to extend due process guarantees to non-citizens accused of terrorism. Contention 2: The current system creates more terrorists, and makes existing terrorists harder to catch One of the major reasons the US has been unable to make good headway in the war against terror is, quite bluntly, because of the US governments terrible track record in the treatment of detainees. According to numerous members of the army, including Alberto Mora, former US Navy General Counsel, the number one major cause of terrorist recruitment is the symbol of Guantanamo Bay and what it says about the United States lasses-faire attitude towards human life. Alberto J. Mora, Former U.S. Navy General Counsel, June 17 , 2008, Statement of Alberto J. Mora. Senate Committee on Armed Services Hearing on the Treatment of Detainees in U.S. Custody http://armed-services.senate.gov/statemnt/2008/June/Mora%2006-17-08.pdf But the damage to our national security also occurred down at the tactical or operational level. Ill cite four examples: First, there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq as judged by their effectiveness in recruiting insurgent fighters into combat are, respectively the symbols of Abu Ghraib and Guantanamo. And there are other senior officers who are convinced that the proximate cause of Abu Ghraib was the legal advice authorizing abusive treatment of detainees that issued from the Department of Justices Office of Legal Counsel in 2002. Second, allied nations reportedly hesitated on occasion to participate in combat operations if there was the possibility that, as a result, individuals captured during the operation could be abused by U.S. or other forces. Third, allied nations have refused on occasion to train with us in joint detainee capture and handling operations because of concerns about U.S. detainee policies. And fourth, senior NATO officers in Afghanistan have been reported to have left the room when issues of detainee treatment have been raised by U.S. officials out of fear that they may become complicit in detainee abuse. Not only are more terrorists being created because of the USs poor public image, but more soldiers are dying as a result. Both of these factors dramatically reduce national security. Additionally, the nations awful detention practices cause civilians in Iraq, Afghanistan and elsewhere to be exceedingly reticent towards US military investigators trying to apprehend terrorists, making it even less likely terrorists are brought to justice. The problems dont stop there: even among its allies, the United States prisoner abuses are a sticking point, causing recalcitrance amongst allied leaders when asked to help donate troops to the wars in Iraq and Afghanistan. Other nations soldiers refuse to fight alongside the US because they dont want to be responsible for future torture of terrorist suspects. Far from protecting us, our governments choice to detain terrorist suspects without due process is directly responsible for increased risk to national security. Contention 3: The conventional court system can handle terrorism trials If non-citizens accused of terrorism are granted due process rights, they will not only be freed from the tyranny of the detention process, but also will be guaranteed a speedy trial in front of a jury. Some proponents of the
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism detention system have argued that the conventional system cant handle terrorist suspects, but they are incorrect. The conventional court system has shown it can handle sensitive, security-oriented trials time and time again. Kenneth Roth, Executive Director of Human Rights Watch, May/June 2008, After Guantanamo: The Case Against Preventive Detention. Foreign Affairs http://almanthour.org/index.php?view=article&catid=22%3Aenglish-section&id=66%3Aafter-guantanamo-thecase-against-preventive-detention-&format=pdf&option=com_content&Itemid=38 Fortunately, there is no need to contemplate such a radical departure from U.S. constitutional norms. U.S. courts are fully capable of addressing today's terrorist threat. The U.S. criminal justice system has successfully dealt with a broad range of serious security threats, from espionage at the height of the Cold War to ruthless drugtrafficking enterprises. In none of these cases has the United States' strong tradition of protecting defendants' due process rights stood in the way. The Classified Information Protection Act ensures that classified information will not be leaked to terrorists abroad. The existence of the crime of conspiracy means that all terrorist suspects will be able to have charges brought against them, ensuring they will fit into the conventional court system without difficulty. In addition, having public trials will also show the rest of the world that the United States is finally taking a stand against human rights abuses and is willing to treat even suspected terrorists as they would their citizens. This will reduce terrorist recruitment, lead to the apprehension of more terrorists through international cooperation, and undoubtedly protect national security far more than the detention system does. For this reason and the reasons specified in my other two contentions, I urge an affirmative ballot in todays debate.
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Deterrence of Terrorists is Impossible

Deterrence fails for many reasons Uri Fisher PhD candidate in Political Science at the University of Colorado-Boulder, February 2007, Deterrence,
Terrorism, and American Values. Homeland Security Affairs Volume 3, no. 1, http://www.hsaj.org/?article=3.1.4 By now, the arguments are familiar for why deterring a group such as al-Qaeda is a complex endeavor. First, terrorists are highly motivated and therefore they are willing to risk anything their lives in the case of suicidebombers to accomplish a goal. Second, the political goals of terrorist groups are often very broad, idealistic, ambiguous, or unclear. Third, terrorists are difficult to locate. Terrorist networks operate trans-nationally and therefore make reprisals difficult to return to sender. Fourth, it remains undecided how deterrence can work against an enemy that understands that the ultimate policy goal of the U.S. is not to coexist with groups like alQaeda, but to eradicate them. Finally, terrorists often attempt to incite retaliation. Terrorists have used the collateral damage caused by retaliatory efforts to foment more support for their organization or broader cause. In total, the deck is stacked against deterrence playing a significant role in U.S. counterterrorism policy.
Deterrence fails because US foreign policy is based on US morals Uri Fisher PhD candidate in Political Science at the University of Colorado-Boulder, February 2007, Deterrence,
Terrorism, and American Values. Homeland Security Affairs Volume 3, no. 1, http://www.hsaj.org/?article=3.1.4 U.S. foreign policy has always been a manifestation and extension of the basic values, principles, and beliefs on which the American republic was founded. In dealing with terrorists, the U.S. has sought rational, reasoned, and relatively proportional responses in order to maintain the respect of the international community and its own citizens. However, to deter certain terrorist elements the U.S. will ultimately find it necessary to compromise certain democratic values that have long guided its foreign policymaking. Because the U.S. cares about projecting an image of virtue, it is unlikely that it will ever truly be able to put at risk what terrorist elements value. The current war on terrorism has already revealed the inherent conflict between maintaining a foreign policy that reflects the reality of U.S. capabilities while remaining dedicated to democratic ideals.
Terrorist threats can always thrive in nations with poor security Daniel Whiteneck, research analyst at the Center for Naval Analyses, Summer 2005, Deterring Terrorists:
Thoughts on a Framework. The Washington Quarterly. http://www.twq.com/05summer/docs/05summer_whiteneck.pdf Of course, this is not to say that the United States can or should actually hold every state accountable for the acts of terrorists who have used the states territory or have otherwise exploited the states resources. Terrorists may choose to encamp within a state whose government is too weak to maintain its sovereignty or that lacks the resources to defend all of its borders. It is possible for a state to have a compartmented government, in which one agency may support terrorist activities independent of oversight by the head of state. Furthermore, WMD or WMD materials may simply be stolen from a states weapons cache. Although the United States can demand that no state knowingly provide a terrorist group with the material or technology required to develop WMD and insist that states be vigilant in controlling the use of their territory, particularly if Washington is willing to provide military or law enforcement assistance when necessary, it cannot expect poor states to install domestic intelligence-gathering capabilities similar to those of the United States or other Western nations. Less-developed African countries have little capability to control their borders. Similarly, in Asia and possibly even South America, some states do not have sufficient resources to detect discrete terrorist cell activities in large cities, let alone in the more remote areas of their territories.
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Deterrence fails because the US is not willing to abandon its moral authorityand terrorists know this Uri Fisher PhD candidate in Political Science at the University of Colorado-Boulder, February 2007,Deterrence,
Terrorism, and American Values. Homeland Security Affairs Volume 3, no. 1, http://www.hsaj.org/?article=3.1.4 Most examinations of deterrence and U.S. counterterrorism policy make the common argument that the U.S. will have to communicate a clear message of punishment against terrorist elements, without actually considering toward whom and where these threats should be directed. Moreover, in those instances where authors consider targets of retaliation, potential threats of punishment rarely strike at what terrorists truly hold dear. Frequently, policy recommendations represent little more than establishing obstacles to terrorist networks, not meaningful attempts to change the decision-calculus of terrorist elements. The targets the U.S. will be forced to retaliate against and the manner in which these targets will have to be engaged may render the moral price of establishing a real deterrent mechanism too high. Deterrence is impossible against terrorists, not because it is theoretically inapplicable, but because the U.S. is too concerned with maintaining its moral authority in the world. The aspiration of the U.S. to take the moral high road will signal to terrorists that the things they value most are actually not in grave danger. When attempting to deter terrorists the ethical and necessary ultimately will collide.
Deterrence will never work until the US can make it clear to terrorists that they will go to any lengths to punish terrorismwhich wont happen Uri Fisher PhD candidate in Political Science at the University of Colorado-Boulder, February 2007, Deterrence,
Terrorism, and American Values. Homeland Security Affairs Volume 3, no. 1, http://www.hsaj.org/?article=3.1.4 Concern over the cost of compromising our ideals undoubtedly undermines efforts to make our enemies believe we are willing to punish them no matter at what expense. To effectively deter terrorists the U.S. will have to accept the price that comes with violating some human rights, responding with overwhelming force, alienating certain allies, and even eliminating those assets and people that terrorists may hold dear. Any discussion of deterrence that fails to acknowledge the necessity to implement such policies belongs only in ivory towers where the theoretical does not have to be tested by the practical. Deterring terrorists will not happen with strong policy statements alone, it will only happen if the U.S. can clearly illustrate to terrorists and their supporters that they will feel significant pain as the result of their actions.
American Military Policy invigorates terrorists Davis Allsop, University of St. Andrews, April 2010, The Viability of Deterring Terrorism. e-IR.com
http://www.e-ir.info/?p=4330 On the one hand, deterrence in international relations is a threat of retaliation by extreme force that is made prior to a terrorist attack. The intended outcome is that a terrorist organization will go through a traditional cost-benefit analysis and deem its attack not worth the consequences. On the other hand, criminal deterrence is the threat of severe and lengthy penalties to be applied after the terrorist attack. These two sub-sections of deterrence are in a struggle for primacy in the application of deterrence to counterterrorism: While terrorism is a criminal offence, responses to terrorism do not fit entirely within the traditional penal approach to deterrence that is applied to the majority of crimes. Similarly, the status of terrorists means that the international relations approach to deterrence may not be entirely appropriate either. In Jacqueline Gray and Margaret Wilsons 2006 study of 178 British university students, diplomacy with terrorist states was generally considered as deterrence, while military action was perceived as vengeance. This finding suggests that counterterrorism military operations do not send a deterrence message, but rather invigorate would-be terrorists. As a result, military operations are classified as preemptive attacks, and deterrence, as a counterterrorism strategy, is understood to be a threat of diplomatic action and criminal prosecution intended to diminish the attractiveness of terrorist activity; however, the definition still is not yet complete.
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Poor Treatment of Detained Non-Citizens Leads to Increased Terrorism

Wrongful preventive detention discourages civilians from cooperating to fight terrorism Kenneth Roth, Executive Director of Human Rights Watch, May/June 2008, After Guantanamo: The Case
Against Preventive Detention. Foreign Affairs http://almanthour.org/index.php?view=article&catid=22%3Aenglish-section&id=66%3Aafter-guantanamo-thecase-against-preventive-detention-&format=pdf&option=com_content&Itemid=38 Preventive detention also discourages citizens from cooperating with counterterrorist investigations, a crucial factor in uncovering terrorist plots. Counterterrorism experts report that information gleaned from interrogating detainees is far less important than information delivered by members of the general public who see something suspicious and report it. For example, information given by relatives of the perpetrators and the general public was key to the arrest of those responsible for the attempted bombings in London on July 21, 2005. Similarly, a British Muslim who found an acquaintance's behavior suspicious led the police to discover the plot to bomb several transatlantic flights using liquid explosives in August 2006. Because sympathy for the victims of abusive counterterrorism policies tends to be greatest in the communities that give rise to terrorists, policies such as preventive detention jeopardize this vitally important source of intelligence.
Inhumane detention practices are directly responsible for massive terrorist recruitment Matthew Alexander, Former Member of the US Airforce, Leader of the Interrogation Team that Led to the th Capture of Abu Musab al-Zarqawi, leader of al-Qaeda in Iraq, November 30 2008, Im Still Tortured by What I
Saw in Iraq. Washington Post http://www.washingtonpost.com/wp-dyn/content/article/2008/11/28/AR2008112802242.html I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.
Terrorists share a collective identity, meaning an attack on 1 is an attack on all Marta Sparago, Masters in Terrorism and National Security at the Center for Global Affairs at New York University, Spring 2007, Terrorist Recruitment: The Crucial Case of Al Qaedas Global Jihad Terror Network.
Center for Global Affairs, NYU. http://www.scps.nyu.edu/export/sites/scps/pdf/global-affairs/marta-sparago.pdf The notion of community is very strong in the Muslim world. Unlike in the West, there is much less of an emphasis on the individual as a person and more on the individual as part of the community. This communal bonding does help explain the general mindset in many areas, including how individuals interact with each other and how they perceive the West. For those individuals who turn to terrorism, they are not necessarily embracing violence for what has been done to them specifically, but for what has been done to their people. They do not make the distinction between themselves and their communities or even their religious brethren across the globe: With the transnational Muslim identity comes a sense of universal grievance. The local and global can no longer be distinguished. Now, the sufferings of Muslims every have become even more palpably the responsibility of every
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism Muslim. They have internalized an external assault (perceived or otherwise) on their community, thus designating themselves the recipient of this assault. Marta Sparago, Masters in Terrorism and National Security at the Center for Global Affairs at New York University, Spring 2007, Terrorist Recruitment: The Crucial Case of Al Qaedas Global Jihad Terror Network. Center for Global Affairs, NYU. http://www.scps.nyu.edu/export/sites/scps/pdf/global-affairs/marta-sparago.pdf for certain individuals who live in circumstances where the prospect for communal action and social bonding may be restricted, the terrorist organization may provide the individual a needed outlet: The hate mongering leader plays a crucial organizing role, provides a sense making explanation for what has gone wrong in their lives, identifying the external enemy as the cause, as well as drawing together into a collective identity otherwise disparate individuals who may be discontented and aggrieved, but who, without the powerful presence of a leader, will remain isolated and individually aggrieved. This social network is attractive to many people. In certain areas where conflict and instability are common, the terrorist organization gives the individual a social construct that may be lacking. This acts as a beacon for terrorist recruitment. The group embraces the recruit as much as the recruit embraces the terrorist ideology. This provides the recruit with the structure to act for a purpose greater than his own. The individual thus surrenders his own identity to that of the group. Survival of the group and the cause takes precedence over the individual existence.
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Conventional Justice System Can Conduct Terrorist Trials/Detention

US court system has a history of dealing with security threats despite due process Kenneth Roth, Executive Director of Human Rights Watch, May/June 2008, After Guantanamo: The Case
Against Preventive Detention. Foreign Affairs http://almanthour.org/index.php?view=article&catid=22%3Aenglish-section&id=66%3Aafter-guantanamo-thecase-against-preventive-detention-&format=pdf&option=com_content&Itemid=38 Fortunately, there is no need to contemplate such a radical departure from U.S. constitutional norms. U.S. courts are fully capable of addressing today's terrorist threat. The U.S. criminal justice system has successfully dealt with a broad range of serious security threats, from espionage at the height of the Cold War to ruthless drugtrafficking enterprises. In none of these cases has the United States' strong tradition of protecting defendants' due process rights stood in the way.
Trying people for conspiracy means a crime doesnt need to be committed to convict Kenneth Roth, Executive Director of Human Rights Watch, May/June 2008, After Guantanamo: The Case
Against Preventive Detention. Foreign Affairs http://almanthour.org/index.php?view=article&catid=22%3Aenglish-section&id=66%3Aafter-guantanamo-thecase-against-preventive-detention-&format=pdf&option=com_content&Itemid=38 the crime of conspiracy is sufficient to address today's terrorist threat because it is both backward and forward looking. Under U.S. law, a conspiracy can occur whether or not an intended illegal act has been carried out. Much as with the French crime of association de malfaiteurs, all that must be proved is that two or more people agreed to pursue an illegal plan and took at least one step to advance it. This should cover most terrorist plans: the lone wolf terrorist is rare, and al Qaeda and its spinoffs have typically relied on numerous participants to agree on a plan and pursue it. The same intelligence that allows investigators to identify and prevent a terrorist plot should allow them to prosecute the participants for conspiracy. Similarly, the crime of providing material support to terrorists can occur even when a terrorist act is only in preparation and has not yet been committed.
The conventional system is more efficient than military tribunals Stephen J. Schulhofer, Robert B. McKay Professor of Law at New York University, 2008, Prosecuting
Suspected Terrorists: The Role of the Civilian Courts. Advance: The Journal of the ACS Issue Groups. http://www.acslaw.org/files/Prosecuting-Suspected-Terrorists.pdf The need for a special system of tribunals has been wildly exaggerated. The federal courts are already wellequipped to protect classified information and to handle all the other supposed complexities of terrorism trials. Quite simply, terrorism suspects can and should be indicted and tried for their alleged crimes in the ordinary civilian court system. That approach will avoid further damage to Americas reputation for respecting human rights, and it will enhance our ability to win the whole-hearted cooperation of our allies in the global counterterrorism effort, including our ability to extradite terror suspects held in allied nations abroad. That approach will ensure an essential check on government power through independent judicial oversight of the momentous executive decision to deprive an individual of his liberty. Not least important, and somewhat paradoxically, that approach will also permit much more expeditious and efficient prosecution, conviction and punishment than a newly created system of military tribunals will ever be able to achieve. Supporters of the new military tribunals are mostly well-intentioned patriots who are genuinely disturbed by the prospect of jeopardizing classified information in conventional trials. But in many instances they also seem to be influenced by instinctive mistrust of judicial oversight, by unwarranted confidence in the probity and competence of an unchecked executive, and by a failure to focus on a pragmatic assessment of the most practical means available to get the job done. Detainees who have indeed perpetrated or attempted to launch acts of brutal violence against defenseless civilians should be convincingly convicted and promptly, severely punished; yet the military tribunal system has allowed these individuals to paint themselves as victims. Reliance on proven procedures of unquestioned legitimacy would eliminate that distraction and quickly return the focus of attention, as it should be, to the actual culpability of the alleged perpetrators.
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Secrecy is empirically safe in the conventional system thanks to CIPA Kenneth Roth, Executive Director of Human Rights Watch, May/June 2008, After Guantanamo: The Case
Against Preventive Detention. Foreign Affairs http://almanthour.org/index.php?view=article&catid=22%3Aenglish-section&id=66%3Aafter-guantanamo-thecase-against-preventive-detention-&format=pdf&option=com_content&Itemid=38 Finally, opponents of criminally prosecuting terrorism suspects argue that such trials force the government to reveal its secret sources and intelligence-gathering methods. But this problem is not insurmountable. It often arises when sensitive investigations involving national security, drug trafficking, or organized crime lead to prosecution. In such circumstances, defense lawyers typically try to force the government to either reveal sensitive secrets or drop the case. To address these situations, Congress enacted the Classified Information Procedures Act (CIPA) in 1980. The law empowers federal judges to review defense counsels' requests for classified information with the aim of sanitizing that information as much as possible or restricting its disclosure to only those defense lawyers with security clearance. The purpose of the act is to protect a defendant's right to confront all the evidence against him or her while safeguarding legitimate intelligence secrets. If due process requirements cannot be met without revealing secret information, the government must either drop the relevant charges or declassify the information. Judges who have tried cases under CIPA speak of it as a reasonable compromise between fairness and security. CIPA rules have not forced the government to abandon even one of the dozens of international terrorism cases it has prosecuted since 9/11.
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Life in Detention Is Terrible

Prisoners are interrogated frequently and violently st Avery Walker, Raw Story Reporter, June 21 , 2006, Former Detainee Paints Harrowing Portrait of Life at
Guantanamo Bay. Raw Story http://www.rawstory.com/news/2006/Former_Gitmo_detainee_paints__0621.html Ahmed was stripped down, given body and cavity searches and had his head and beard shaved. He was then dressed in goggles, a woolen cap, a jacket and what jailers called a "three piece suit": a chain that wraps around the waist, connecting handcuffs to shackles. He was on his way to Guantanamo. There, abuse continued as "the rule, not the exception," Ahmed recalls. Interrogations would be as often as twice a day, or as lengthy as twelve hours, he adds. Such interrogations were done under the pretense that the world was unaware prisoners were being held at the base, he says. But thanks to the guards at Kandahar, Ahmed knew better. "I believed people knew detainees were in Guantanamo," he explains. "But we were told that nobody cares and nobody is going to be doing anything about it. After being told that a hundred, a thousand times, you start to believe it."
Prisoners are heavily controlled and rarely get to leave their cells th Carol J. Williams, Times Staff Writer, March 28 , 2008, A Day in a Detainees Life. LA Times
http://articles.latimes.com/2008/mar/28/nation/na-gitmoday28 Prisoners eat their meals in their cells. They seldom leave them. Each is equipped with a bunk, sink and toilet. Only the most compliant detainees can keep a toothbrush, toothpaste and soap. Those being disciplined or segregated from others must ask for their hygiene items from guards, who monitor their use, then remove them. To prevent a toothbrush from being shaved into a shank, the detainees are issued stout plastic rings with bristles attached. When they do leave their cells, prisoners are shackled and escorted -- to and from showers, recreation pens, interrogation interviews, and a meeting or two each year with their lawyers. They leave their cells in the "hard facilities" of Camps 5, 6 and the new 7 for no other reason, unless they are found to need medical or dental treatment when corpsmen make periodic rounds. Once a man has refused nine consecutive meals, he is considered a hunger striker and brought to the detention medical center. His head, arms and legs are strapped to a "restraint chair" while a tube is threaded through his nose and throat into the stomach. A doctorrecommended quantity of Ensure is administered.
Prisoners who dont submit to interrogation are abused th Tarek Dergoul, former Guantanamo prisoner, May 16 , 2004, 'They Tied Me Up Like A Beast
And Began Kicking Me The Observer. Article written by David Rose. http://www.guardian.co.uk/world/2004/may/16/terrorism.guantanamo I was in extreme pain and so weak that I could barely stand. It was freezing cold and I was shaking like a washing machine. They questioned me at gunpoint and told me that if I confessed I could go home. They had already searched me and my cell twice that day, gone through my stuff, touched my Koran, felt my body around my private parts. And now they wanted to do it again, just to provoke me, but I said no, because if you submit to everything you turn into a zombie. I heard a guard talking into his radio, "ERF, ERF, ERF," and I knew what was coming - the Extreme Reaction Force. The five cowards, I called them - five guys running in with riot gear. They pepper-sprayed me in the face and I started vomiting; in all I must have brought up five cupfuls. They pinned me down and attacked me, poking their fingers in my eyes, and forced my head into the toilet pan and flushed. They tied me up like a beast and then they were kneeling on me, kicking and punching. Finally they dragged me out of the cell in chains, into the rec yard, and shaved my beard, my hair, my eyebrows.
Torture is commonplace and accepted in detention centers th Richard Phillips, World Socialist Web Site reporter, December 18 , 2004, David Hicks details abuse in
Guantanamo Bay. World Socialist Web Site. http://www.wsws.org/articles/2004/dec2004/hick-d18.shtml Hicks is one of four Guantnamo Bay prisoners formally charged on allegations of terrorist activity and due to face trial early next year. He explained that he was beaten before, after, and during interrogations... *and+
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism threatened, directly and indirectly, with firearms and other weapons before and during interrogations during his three-year detention. *+ He states that he has been hit in the face, head, feet, and torso with hands, fists and other objects, including rifle butts. At one point, a group of detainees, including myself, was subjected to being randomly hit over a eight-hour session while handcuffed and blindfolded, he said. His head was rammed into the ground several times. *+Hicks affidavit demonstrates, yet again, that physical and psychological abuse is part of the jails standard operating procedure. *+ I have witnessed the activities of the Internal Reaction Force (hereinafter IRF), which consists of a squad of soldiers that enter a detainees cell and brutalise him with the aid of an attack dog. The IRF invasions were so common that the term to be IRFed became part of the language of the detainees. I have seen detainees suffer serious injuries as a result of being IRFed. I have seen detainees IRFed while they were praying, or for refusing medication. Hicks stated that he was deprived of sleep as a matter of policy, forcibly injected with unknown sedativeshis requests for information about the drugs ignoredand beaten while under their influence.
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MCA Yes plus Turn: MCA expands enemy combatants; Court will uphold now
The MCA authorizes seizing enemy combatants; The court will uphold this; Only the Plan stops enemy combatant status Bruce Ackerman is a professor of law and political science at Yale and author of "Before the Next Attack:
Preserving Civil Liberties in an Age of Terrorism." http://www.latimes.com/news/opinion/la-oe-ackerman28sep28,0,619852.story?coll=la-opinion-rightrail 09/28/2006 Bruce Ackerman on the Hidden Evils of the Torture Bill BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights. This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops during an armed conflict, it also allows him to seize anybody who has purposefully and materially supported hostilities against the United States. This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison. Not to worry, say the bills defenders. The president cant detain somebody who has given money innocently, just those who contributed to terrorists on purpose. But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the presidents initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials. Legal residents who arent citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the presidents suspicions. We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an enemy combatant upon his arrival at Chicagos OHare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the presidents extraordinary action, the Supreme Court refused to hear the case, handing the administrations lawyers a terrible precedent. The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review. But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorized this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority. This is no time to play politics with our fundamental freedoms. Even without this massive congressional expansion of the class of enemy combatants, it is by no means clear that the present Supreme Court will protect the Bill of Rights. The Korematsu case upholding the military detention of tens of thousands of Japanese Americans during World War II has never been explicitly overruled. It will be tough for the high court to condemn this notorious decision, especially if passions are inflamed by another terrorist incident. But congressional support of presidential power will make it much easier to extend the Korematsu decision to future mass seizures. Though it may not feel that way, we are living at a moment of relative calm. It would be tragic if the Republican leadership rammed through an election-year measure that would haunt all of us on the morning after the next terrorist attack.
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MCA Yes plus Turn: Court will uphold MCA; only Plan stops it
The court will uphold the MCA; only plan can stop its detention of enemy combatants Mark Maynard, 10/18/06
Permalink 12:31:16 am, Categories: Politics, Observations, 527 words the signing of the military commissions act and what it means http://markmaynard.com/index.php/2006/10/18/the_signing_of_the_military_commissions Today, President Bush signed the Military Commissions Act into law. Bush called it a vital tool in the war against terrorism. Others strongly disagree. Heres a quote from ACLU executive director, Anthony D. Romero: "With his signature, President Bush enacts a law that is both unconstitutional and un-American. This president will be remembered as the one who undercut the hallmark of habeas in the name of the war on terror. Nothing separates America more from our enemies than our commitment to fairness and the rule of law, but the bill signed today is an historic break because it turns Guantnamo Bay and other U.S. facilities into legal no-man's-lands. The president can now - with the approval of Congress - indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions. Nothing could be further from the American values we all hold in our hearts than the Military Commissions Act." As long as were quoting, heres another observation. This one comes from Jack Balkin: It is a travesty of law under the forms of law. It is the accumulation of executive, judicial, and legislative powers in a single branch and under a single individual. It is the very essence of tyranny. Or, how about this from the All Spin Zone: By approving the legislation, he has allowed the gutting of the concept of habeas corpus, and declared himself omnipotent - he now has the authority, with absolutely no legal recourse on your part, to declare you an enemy combatant. In effect, by signing the bill, he has done just that. Yes, its true that the Supreme Court could strike it down, but Id be surprised if our current lineup of Justices had the gravitas and courage to stand up to the administration and reign-in Executive power. So, I guess thats it. Barring any intervention from the Supreme Court, God, or the American people, it looks as though the President can now designate anyone an enemy combatant," order them to be held indefinitely, without access to legal counsel, and with no onus on the part of the government to prove their guilt. (There's some debate as to where the line is drawn between citizens and non-citizens. See the comments section for details.) And, as you already know, habeas corpus is fading from our legal lexicon So, as others have said, you could, from this day forward, be picked up and held without access to legal counsel, and without evidence. You could also be tortured, and even put to death, if others (perhaps under threat of physical pain) give witness against you. This is now the law of our land.
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MCA Turn: MCA expands enemy combatant status

MCA directly expands enemy combatant status; Plan stops that Nat Hentoff 10/08/2006 Congress Bows To Bush New Military Commissions Act gives president more power
than ever http://villagevoice.com/news/0641,hentoff,74664,6.html For the first time, the definition of "unlawful enemy combatant" has been greatly expanded to include not only those engaged in actual combat against the United States but also anyone anywhere who has "purposely and materially supported hostilities against the United States." Such support can encompass sending money or empowering our enemies in other indirect ways. "Imagine," said Senator Patrick Leahy on the Senate floor last last month, "you are a law-abiding, lawful permanent resident. . . . You do charitable fundraising for international relief agencies. . . . You do not discriminate on the grounds of religion. Then one day there is a knock on your door. "The government thinks that the Muslim charity you sent money to may be funneling money to terrorists, and it thinks you may be involved. . . . You are brought in for questioning. . . . You ask for a lawyer. But no lawyer comes. . . . Then [you're sent to] Guantnamo. And then nothing, for years, for decades, for the rest of your life." Adds a September 27 Washington Post editorial, "Rush to Error": "[This legislation gives] extraordinary power to the Defense Department to arrest and hold foreigners and Americans without charge" as enemy combatants without access to our courts. (Emphasis added.)
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MCA Turn: Plan stops enemy combatants in MCA

MCA expands definition of enemy combatant; Plan would force it to be ruled unconstitutional Jim Lobe Right Web contributing writer and the Washington bureau chief of the Inter Press Service, which published an earlier version of this article. 10/10/2006
Scrapping the Geneva Conventions http://globalpolitician.com/articledes.asp?ID=2213&cid=10&sid=47 Passage of the MCA, which Bush said will ensure *that U.S. troops+ are prepared to defeat today's enemies and address tomorrow's threats, puts an end to a three-week congressional debate over what to do about a July U.S. Supreme Court decision that determined that, contrary to the administration's position, suspected terrorists in U.S. custody are entitled to the protections of Common Article 3 of the Geneva Conventions as a matter of both U.S. and international law. Among other provisions, Article 3 requires humane treatment of detainees in all circumstances and bans cruel treatment and torture or outrages upon personal dignity, in particular humiliating and degrading treatment. It also requires that all detainees be given a fair trial with all the guarantees recognized as indispensable by civilized peoples. That decision required the administration to seek legislation to establish standards for the treatment and trial of detainees, including 14 so-called high-value al-Qaida suspects who had been held incommunicado by the CIA and subjected to what Bush called alternative interrogation procedures before the court's decision. They have now been transferred to Guantanamo and are expected to face trial under military commissions established by the new law. As a result, Bush submitted new legislation earlier this month. But several senior Republican senators with distinguished military records, backed by former military lawyers, rights groups, and most Democrats, strongly objected to many of the draft legislation's provisions, which they claimed redefined Article 3 standards in ways that would permit abusive treatment and unfair trials. Lengthy negotiations ensued between the three Republican rebels and the administration, resulting in a compromise that on one hand appeared to reaffirm Article 3 as the law governing the treatment of detainees, but on the other hand provided the executive branch considerable latitude in how it would be interpreted, particularly with respect to CIA interrogation tactics. Some groups, notably HRF and Human Rights Watch (HRW), hailed changes in the bill that they said would preclude the use of especially harsh methods, such as waterboarding, prolonged stress positions or sleep deprivation, hypothermia, and mock executions. However, their overall opposition to the billparticularly with respect to the denial of habeas corpus, various procedural aspects of the military commissions, and proposed changes in the 1996 War Crimes Actremained unchanged. One particular item of concern was the bill's expansion of the definition of unlawful enemy combatants who could be subject to detention under the MCA to cover peopleincluding U.S. citizens and legal permanent residentswho have purposefully and materially supported hostilities against the United States or its cobelligerents, or anyone deemed as such by a Combatant Status Review Tribunal, which is overseen by the Pentagon. This provision expands the concept of combatant way beyond anything that is traditionally accepted, and it could come back to haunt Americans, said HRW Director Kenneth Roth. It would make every civilian cafeteria worker at a U.S. military base, and every worker in an American uniform factory, someone whom enemy forces could shoot to kill.
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MCA Turn: Grossly expands enemy combatant definition

MCA grossly expands enemy combatants; Plan stops it Congresspedia 11/09/2006
http://www.sourcewatch.org/index.php?title=Military_Commissions_Act_of_2006#.22Unlawful_enemy_combata nts.22_under_the_MCA "Unlawful enemy combatants" under the MCA The MCA defines as "unlawful enemy combatants" as anyone who has "purposefully and materially" supported hostilities against the United States. This includes support that takes place off the battlefield. [2] Additionally, persons who have been previously declared an "unlawful enemy combatant" by a Combatant Status Review Tribunal (CSRT) military boards convened to allow detainees at Guantanamo Bay to challenge their combatant status or "another competent tribunal" established by the president or defense secretary are also treated as combatants under the MCA. CSRTs are given no guidance under the MCA in making designations and in the past have used a more broad definition than the one in the MCA. In one case a CSRT designated a detainee as an enemy combatant for being an unknowing financier of a charitable arm of a terrorist organization. [3]
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MCA Turn: ICCPR bans the MCA

ICCPR would ban the MCA Human Rights Watch 10/18/2006
Q and A: Military Commissions Act of 2006 http://www.indybay.org/uploads/2006/10/18/usqna1006web.pdf 11. How do the court-stripping provisions in the MCA change current law? In December 2005, Congress passed the Detainee Treatment Act, which prevents Guantanamo Bay detainees from bringing any future habeas challenges to their detention, as well as any other claims challenging their conditions of confinement or treatment. The MCA extends these court-stripping prohibitions and makes them retroactive and applicable to non-citizens in U.S. custody anywhere in the world. Unless found to be unconstitutional, these provisions could result in courts summarily dismissing more than 200 pending habeas cases brought on behalf of the Guantanamo detainees and a handful of detainees in Afghanistan. 12. Do these court-stripping provisions violate international law? Yes. International law requires that persons subjected to human rights violations have a right to an effective remedy. The United States has ratified and is therefore obligated to comply with the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). These multinational treaties require that detainees have access to independent courts to challenge the legality of their detention and to raise and seek redress for torture and other abuse.3
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PART VI: NEGATIVE

SECTION 1-SAMPLE NEGATIVE CASE Hello ladies and gentlemen, I would like to begin by thanking my opponent and the judge for being here today. I am here to negate the resolution Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens. Before presenting my value, criterion and contentions, I will clarify a key term in todays debate. I would like to counter-define ought as used to express obligation from Merriam-Webster. This definition is preferable to the affirmatives as it removes the morality aspect which serves only to skew the debate towards the aff. Value: Utilitarianism My value in todays debate is utilitarianism, or maximizing the greatest possible amount of good for the greatest possible amount of people. The value of utilitarianism allows for a cost-benefit analysis debate which ensures we dont get bogged down in ludicrous philosophical rantings and instead can measure the impacts of our contentions easily and without needed judge intervention. Criterion: Minimizing free terrorists My criterion today is minimizing free terrorists. Given the context of the resolution, I think this criterion is the perfect lens through which to determine if I fulfill my value of utilitarianism. If there are less free terrorists, the risk of terrorist attacks that would reduce the good in many peoples lives is lower, and thus utilitarianism is fulfilled. Contention 1: The conventional justice system does not work for terrorist suspects If we were to follow the affirmatives suggestion and grant due process rights to non-citizens suspected of terrorism, the immediate result would be an influx of terrorist trials conducted by the conventional, civilian court system. No other system exists in the US that can be argued to fulfill all parts of due process, as witnessed by the heated debate over the creation and usage of military commissions to try terrorist suspects. The conventional system simply cannot handle the specific provisions that must be met to have a safe, secure, efficient trial for terrorist suspects. Thomas L. Powers, PhD in Political Science at the University of Minnesota Duluth, September 22 2009, Due Process for Terrorists? The Weekly Standard. http://www.cbsnews.com/stories/2004/01/08/opinion/main592130.shtml Ordinary criminal courts are not designed for trying terrorism suspects. As a practical matter, they do not routinely provide the kind of security for witnesses, judges, and jurors that is required where terrorist attack and reprisal are a concern. More important, they cannot meet the need for secrecy that may arise from the use of sensitive testimony derived from confidential sources. Normal due process rights, including the right of defendants to confront witnesses against them, must be managed very carefully lest they undermine antiterrorism efforts. Similarly, where potential defendants are apprehended on foreign battlefields, some standard Fourth, Fifth, and Sixth Amendment rights (having to do with search warrants, Miranda warnings, the right to have an attorney present while being questioned) and other rules pertaining to evidence (the exclusionary rule, the prohibition of hearsay evidence) are clearly out of place. First, the conventional system requires open trials, meaning sensitive US intelligence information would have to be compromised to gain convictions. Additionally, the conventional system has more stringent evidence requirements, meaning hearsay evidence that is essential to conviction would not be allowed. The civilian court system also has higher burdens of proof than military tribunals.
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism Michael B. Mukasey, former US Attorney General (2007-2009), October 19 , 2009, Civilian Courts Are No Place to Try Terrorists. Wall Street Journal. http://online.wsj.com/article/SB10001424052748704107204574475300052267212.html?mod=djemEditorialPage Moreover, it appears likely that certain charges could not be presented in a civilian court because the proof that would have to be offered could, if publicly disclosed, compromise sources and methods of intelligence gathering. The military commissions regimen established for use at Guantanamo was designed with such considerations in mind. It provided a way of handling classified information so as to make it available to a defendant's counsel while preserving confidentiality. The courtroom facility at Guantanamo was constructed, at a cost of millions of dollars, specifically to accommodate the handling of classified information and the heightened security needs of a trial of such defendants. There are also security concerns: these trials are certain to be very high-profile, and terrorist or anti-terrorist elements may attempt an attack. Military commissions are simply better equipped to handle the trial and conviction of terrorist suspects, thus keeping them safely locked away and fulfilling utilitarianism. Contention 2: The conventional prison system breeds terrorists Another essential aspect of due process is the right to not be subjected to cruel and unusual punishment. The Guantanamo Bay detention center has long been seen as a symbol of cruel American detention practices, which means terrorists who are convicted in the conventional system would almost certainly end up in conventional American prison systems. This would have devastating ramifications, as many scholars have noted the relationship between prison time and radicalization. John S. Pistole, Assistant Director of Counterterrorism Division, FBI, October 14 , 2003, Statement For the Record before the Senate Judiciary Committee, Subcommittee on Terrorism, Technology, and Homeland Security. http://www.emergencymgt.net/sitebuildercontent/sitebuilderfiles/JohnSPistole.pdf terrorists seek to exploit our freedom to exercise religion to their advantage by using radical forms of Islam to recruit operatives. Unfortunately, U.S. correctional institutions are a viable venue for such radicalization and recruitment.*+ Recruitment of inmates within the prison system will continue to be a problem for correctional institutions throughout the country. Inmates are often ostracized, abandoned by, or isolated from their family and friends, leaving them susceptible to recruitment. Membership in the various radical groups offer inmates protection, positions of influence and a network they can correspond with both inside and outside of prison. Quite simply, when a disaffected individual in prison meets up with a radical yet charismatic terrorist, the former is very likely to turn to terrorism. In this way, terrorists can spread their message and violence even when behind bars themselves. There are over 2 million inmates in prison, many serving short enough sentences that they could be converted to radical Islam then released into the world to commit terrorist acts. While non-citizens accused of terrorism are possibly innocent, the risk run by putting them into conventional prisons where they are able to corrupt other prisoners and turn them to a life of terrorism is simply too large to ignore. The safest way to meet our value of utilitarianism is to ensure that these potential terrorist training microsocieties are not able to form in the first place, thus reducing the risk of free terrorists. Contention 3: The conventional system should be changed before due process can be granted I agree with the affirmatives arguments regarding the moral treatment of individuals and the importance of individual rights. The affirmatives case, however, would plunge terrorist suspects into a system that cannot yet effectively accommodate them. There are too many procedural and legal issues that need to be ironed out first. Benjamin Wittes, fellow and research director at Brookings Institution, and Mark Gitenstein, senior fellow at Brookings Institution, November 15 , 2007, A Legal Framework for Detaining Terrorists. Brookings Institution http://www.brookings.edu/~/media/Files/Projects/Opportunity08/PB_Terrorism_Wittes.pdf if the military closes the detention operation at Guantanamo, it will simply have to recreate it somewhere else. As long as there is no accepted procedure for making detention decisions, the public diplomacy problem that
th th th
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism plagues the base will continue to plague any future detention sitewhich will become, in the public mind, Guantanamo by another name. Debating Guantanamo in the absence of a larger debate about detention policy is really an exercise in debating the setting for a policy in lieu of debating the policy itself. Simply put, if America puts the underlying system right, the problems of habeas corpus and Guantanamo will take care of themselves. Habeas will, one way or another, prove a non-problemeither because it will not be necessary at all or because it will not be intrusive. Guantanamo will either grow less controversial as detention policy improves or it can be closed and a new facility opened without the taint of its history. By contrast, if America fails to get the system right, neither restoring habeas rights nor closing Guantanamo will compensate for the failure. One step will merely inject judges into the confusion; the other will require the costly construction of a new facility and movement of detainees. Non-citizens accused of terrorism may have different constitutional due process protections than citizens, but ones that are still humane. Additionally, as my first contention points out, the conventional system obviously isnt ready for a slew of terrorism trials. One question in particular that needs to be resolved is if the United States continues to capture terrorism suspects, where will they put them once due process protections mandate the closure of indefinite detention centers such as Guantanamo Bay? Once the system has been sufficiently changed, the kinks ironed out, and a vast number of issues resolved, then perhaps due process can be applied to these terrorist suspects. Before that occurs, the best way to minimize the number of free terrorists, thus upholding utilitarianism, is by restricting the due process protections available to non-citizen terrorist suspects. For this reason and the reasons discussed above, I urge a negative ballot in todays debate.
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Conventional System Wont Work for Terrorist Suspects

Usage of the conventional system has many problems nd Thomas L. Powers, PhD in Political Science at the University of Minnesota Duluth, September 22 2009, Due
Process for Terrorists? The Weekly Standard. http://www.cbsnews.com/stories/2004/01/08/opinion/main592130.shtml Ordinary criminal courts are not designed for trying terrorism suspects. As a practical matter, they do not routinely provide the kind of security for witnesses, judges, and jurors that is required where terrorist attack and reprisal are a concern. More important, they cannot meet the need for secrecy that may arise from the use of sensitive testimony derived from confidential sources. Normal due process rights, including the right of defendants to confront witnesses against them, must be managed very carefully lest they undermine antiterrorism efforts. Similarly, where potential defendants are apprehended on foreign battlefields, some standard Fourth, Fifth, and Sixth Amendment rights (having to do with search warrants, Miranda warnings, the right to have an attorney present while being questioned) and other rules pertaining to evidence (the exclusionary rule, the prohibition of hearsay evidence) are clearly out of place.
Using the conventional system breeds security concerns th Michael B. Mukasey, former US Attorney General (2007-2009), October 19 , 2009, Civilian Courts Are No
Place to Try Terrorists. Wall Street Journal. http://online.wsj.com/article/SB10001424052748704107204574475300052267212.html?mod=djemEditorialPage The challenges of a terrorism trial are overwhelming. To maintain the security of the courthouse and the jail facilities where defendants are housed, deputy U.S. marshals must be recruited from other jurisdictions; jurors must be selected anonymously and escorted to and from the courthouse under armed guard; and judges who preside over such cases often need protection as well. All such measures burden an already overloaded justice system and interfere with the handling of other cases, both criminal and civil. Moreover, there is every reason to believe that the places of both trial and confinement for such defendants would become attractive targets for others intent on creating mayhem, whether it be terrorists intent on inflicting casualties on the local population, or lawyers intent on filing waves of lawsuits over issues as diverse as whether those captured in combat must be charged with crimes or released, or the conditions of confinement for all prisoners, whether convicted or not.
Using the conventional system requires the release of sensitive information th Michael B. Mukasey, former US Attorney General (2007-2009), October 19 , 2009, Civilian Courts Are No
Place to Try Terrorists. Wall Street Journal. http://online.wsj.com/article/SB10001424052748704107204574475300052267212.html?mod=djemEditorialPage Moreover, the rules for conducting criminal trials in federal courts have been fashioned to prosecute conventional crimes by conventional criminals. Defendants are granted access to information relating to their case that might be useful in meeting the charges and shaping a defense, without regard to the wider impact such information might have. That can provide a cornucopia of valuable information to terrorists, both those in custody and those at large. *+It is not simply the disclosure of information under discovery rules that can be useful to terrorists. The testimony in a public trial, particularly under the probing of appropriately diligent defense counsel, can elicit evidence about means and methods of evidence collection that have nothing to do with the underlying issues in the case, but which can be used to press government witnesses to either disclose information they would prefer to keep confidential or make it appear that they are concealing facts. The alternative is to lengthen criminal trials beyond what is tolerable by vetting topics in closed sessions before they can be presented in open ones.
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Using the conventional system requires the release of sensitive information th Madeline Morris et. al, Professor of Law at Duke University, June 30 , 2009, After Guantanamo: War, Crime,
and Detention. Harvard Law and Policy Review. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2630&context=faculty_scholarship&sei A second problem frequently affecting terrorism prosecutions concerns classified information. The presentation of certain evidence at trial (by the prosecution or the defense) may compromise sensitive intelligenceor reveal the methods or sources used for gaining intelligencewith resultant damage to national security. Some commentators dismiss this problem, noting that many terrorism cases have been successfully prosecuted in federal courts. But the relevant question is not whether some terrorism cases can be prosecuted successfully in federal courtsclearly, some canbut, rather, whether some cannot. There is no publicly available list of the terrorism cases that were not prosecuted because of the national-security costs that would have been associated with disclosing the necessary evidence in those trials.
Conventional systems standard of proof is too high to apply to terrorist safely th Madeline Morris et. al, Professor of Law at Duke University, June 30 , 2009, After Guantanamo: War, Crime,
and Detention. Harvard Law and Policy Review. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2630&context=faculty_scholarship&sei The third problem (and the one most unpleasant to articulate) is the standard of proof. Criminal conviction requires proof beyond a reasonable doubt. That standard should not be eroded. Nor, however, should it be applied to the prevention of high-magnitude terrorism. Is it really smart to release an individual shown by clear and convincing evidence (the standard of proof one step below reasonable doubt, often used in civil cases) to have attempted a nuclear attack or a release of smallpox virus? If the answer is no, then criminal law is not the right tool for preventing catastrophic terrorism.
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Conventional Prisons Breed Terrorists

US Correctional Institutions allow terrorist recruitment th John S. Pistole, Assistant Director of Counterterrorism Division, FBI, October 14 , 2003, Statement For the
Record before the Senate Judiciary Committee, Subcommittee on Terrorism, Technology, and Homeland Security. http://www.emergencymgt.net/sitebuildercontent/sitebuilderfiles/JohnSPistole.pdf terrorists seek to exploit our freedom to exercise religion to their advantage by using radical forms of Islam to recruit operatives. Unfortunately, U.S. correctional institutions are a viable venue for such radicalization and recruitment.*+ Recruitment of inmates within the prison system will continue to be a problem for correctional institutions throughout the country. Inmates are often ostracized, abandoned by, or isolated from their family and friends, leaving them susceptible to recruitment. Membership in the various radical groups offer inmates protection, positions of influence and a network they can correspond with both inside and outside of prison.
Radical Islamic movements convert disaffected prisoners Mark Silverberg, foreign policy analyst with the Ariel Center for Policy Research, May 2006, The Silent War:
Wahhabism and the American Penal System. The New Media Journal http://www.islamdaily.org/en/wahabism/4365.the-silent-war-wahhabism-and-the-american-penal-sy.htm The conversion program is funded with Saudi money through the National Islamic Prison Foundation, an organization that underwrites prison outreach but whose real goal is the conversion of large numbers of inmates (primarily African-American) not only to Wahhabism, but to its radical Islamist agenda....and the effort is both successful and, for the most part, hidden from public view. Islam is the fastest growing religion among young, incarcerated African-Americans. Some figures suggest that one out of three African-Americans in federal prison are Muslim and most converted during their imprisonment. With an estimated 250,000 Muslim inmates in the nation's prisons (making up 10% to 17% of the prison and jail population), there are reasons for concern especially since Foundation officials claim an average of 135,000 additional conversions per year. When these inmates are released from prison with the customary $10, a suit of clothes and a one-way bus or train ticket, they know any mosque or masjid (Islamic Center) will shelter and feed them and help them find a job. Prison authorities believe that these converted inmates could serve as terrorists once they are released, murdering their own countrymen in a kind of "payback" for perceived injustices done to them by "white America."
Terrorist recruitment happens because of radical prisoners Mark S. Hamm, PhD at Indiana State University in Criminology and Criminal Justice, December 2007, Terrorist
Recruitment in American Correctional Institutions: An Exploratory Study of Non-Traditional Faith Groups Final Report. Commissioned by the US Department of Justice http://www.ncjrs.gov/pdffiles1/nij/grants/220957.pdf The head of terrorism intelligence recognized that that many Florida prisoners are vulnerable to radicalization and terrorist recruitment. Prisoners themselves are keenly aware of this. The official said: Radicalized prisoners are very aware that people are interested in radicalized prisoners. They are very careful who they talk to in prison. The official also noted that most inmates are radicalized by other radical inmates, and not by outside influences. He further recognized that the greatest threat emanates from fringe elements of Prison Islam, including Muslim inmates who look like white supremacists.
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Congress recognizes the dangers of prisoner radicalization Eric Vogt, Instructor specializing in staff training on anti-terrorism at U.S. Medical Center for Federal Prisons in th Springfield, formerly of US Army Intelligence, May 29 , 2008, Terrorists in Prison: The Challenge Facing
Corrections. American Board for Certification in Homeland Security http://www.icpa.ca/tools/download/622/Terrorists_in_Prison.pdf Inmate radicalization in correctional facilities was identified as a major concern of the U.S. Congress after September 11, 2001. John S. Pistole, the assistant director of the Counterterrorism Division of the Federal Bureau of Investigation, gave this testimony before the Senate Judiciary Committee, Subcommittee on Terrorism, Technology, and Homeland Security on October 14, 2003: In my opinion, al-Qaeda remains the greatest threat to the United States. . . . These terrorists seek to exploit our freedom to exercise religion to their advantage by using radical forms of Islam to recruit operatives. Unfortunately, U.S. correctional institutions are a viable venue for such radicalization and recruitment. . . . Recruitment of inmates within the prison system will continue to be a problem for correctional institutions throughout the country.
Empirics show that terrorist cells can be led from prison Eric Vogt, Instructor specializing in staff training on anti-terrorism at U.S. Medical Center for Federal Prisons in th Springfield, formerly of US Army Intelligence, May 29 , 2008, Terrorists in Prison: The Challenge Facing
Corrections. American Board for Certification in Homeland Security http://www.icpa.ca/tools/download/622/Terrorists_in_Prison.pdf In the 2004 Office of the Inspector Generals Report to Congress, 16 recommendations were made to assist the Federal Bureau of Prisons in improving its process for selecting, screening, and supervising Muslim religious services providers. Donald Van Duyn, the deputy assistant director of the Counterterrorism Division of the Federal Bureau of Investigation, reported on the status of the corrective action to the Senate Committee on Homeland Security and Governmental Affairs and Related Agencies on September 19, 2006: FBI and the Bureau of Prisons analysis shows that radicalization and recruitment in U.S. prisons is an ongoing concern. Prison radicalization primarily occurs through anti-U.S. sermons provided by contract, volunteer, or staff imams, radicalized inmates who gain religious influence, and extremist media. The deputy assistant director then described the case of Jamiyyat Ul-Islam IsSaheeh (JIS). Levar Washington and other recruited members of JIS were allegedly involved in several gas station robberies in Los Angeles, California. Investigation revealed that the putative purpose of this string of robberies was to finance terrorist activities in California against U.S. military and Israeli targets. The founder of JIS, Kevin Lamar James, is an inmate in the California correctional system. He allegedly recruited Washington while at New Folsom prison and, upon release, Washington reportedly recruited the other cell members.
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The conventional system needs changing

There are underlying public policy problems plaguing detention policy Benjamin Wittes, fellow and research director at Brookings Institution, and Mark Gitenstein, senior fellow at th Brookings Institution, November 15 , 2007, A Legal Framework for Detaining Terrorists. Brookings Institution
http://www.brookings.edu/~/media/Files/Projects/Opportunity08/PB_Terrorism_Wittes.pdf if the military closes the detention operation at Guantanamo, it will simply have to recreate it somewhere else. As long as there is no accepted procedure for making detention decisions, the public diplomacy problem that plagues the base will continue to plague any future detention sitewhich will become, in the public mind, Guantanamo by another name. Debating Guantanamo in the absence of a larger debate about detention policy is really an exercise in debating the setting for a policy in lieu of debating the policy itself. Simply put, if America puts the underlying system right, the problems of habeas corpus and Guantanamo will take care of themselves. Habeas will, one way or another, prove a non-problemeither because it will not be necessary at all or because it will not be intrusive. Guantanamo will either grow less controversial as detention policy improves or it can be closed and a new facility opened without the taint of its history. By contrast, if America fails to get the system right, neither restoring habeas rights nor closing Guantanamo will compensate for the failure. One step will merely inject judges into the confusion; the other will require the costly construction of a new facility and movement of detainees.
The best approach is to fix the law before moving forward Benjamin Wittes, fellow and research director at Brookings Institution, and Mark Gitenstein, senior fellow at th Brookings Institution, November 15 , 2007, A Legal Framework for Detaining Terrorists. Brookings Institution
http://www.brookings.edu/~/media/Files/Projects/Opportunity08/PB_Terrorism_Wittes.pdf The right approach is to create the appropriate system first and then figure out what role habeas corpus and Guantanamo should play within it. Developing rules for detaining suspected enemies engaged in unconventional warfare against the United States represents the fundamental challenge facing American legal policy in the war on terrorism today. While problems such as interrogation techniques, the treatment of detainees, the CIAs program of secret prisons, and extraordinary rendition are vital to address as well, they are ancillary issues, which policymakers cannot resolve without first taking on the core questions: who can be detained, for how long, under what rules, what are the detainees rights under these rules, and what role should the courts play in overseeing detentions?
Future terrorist suspects need an avenue for detention and prosecution th Mark Kukis, Time Journalist, November 11 , 2008, How to Close Guantanamo: A Legal Minefield. Time
Magazine. http://www.time.com/time/nation/article/0,8599,1858205,00.html Then there's the question of what to do with future suspected terrorists who are caught in an indefinite war on terrorism if there is no more Guantnamo. Alleged terrorist operatives will continue to fall into the hands of the FBI, CIA and military in the years ahead. Obama may consider working to create so-called national-security courts, which would essentially be a hybrid tribunal system blending military and civilian criminal law. Those who support the creation of national-security courts say that only a new, carefully constructed system can effectively deal with issues like classified evidence and other matters that sometimes snarl proceedings in regular criminal and military courts.
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Empirically, federal court prosecution of terrorist suspects is difficult th Mark Kukis, Time Journalist, November 11 , 2008, How to Close Guantanamo: A Legal Minefield. Time
Magazine. http://www.time.com/time/nation/article/0,8599,1858205,00.html Take for example the case of Khalid Sheikh Mohammed, the most senior al-Qaeda operative in U.S. custody. At present, his case and many other prominent ones appear essentially stalled at the specially formed military commissions, which the Obama campaign has pledged to halt. But prosecuting Mohammed and other cases like his in federal court may prove tricky. At least some of the evidence against Mohammed looks to have been gathered during harsh interrogations, which may make it inadmissible in court. His arrest and detention had none of the necessary steps provided under U.S. civilian law that help safeguard the rights of suspects and sometimes allow for loopholes for some to minimize or evade prosecution. Many of the same legal obstacles would arise in any attempt to court-martial Mohammed, because regular military courts have comparable rules about evidence and legal procedure. There are, at bottom, no good options for trying Mohammed and the roughly 14 others the government appears intent on prosecuting, because the Bush Administration has held them for so many years by Executive Orders in contravention of regular U.S. criminal and military law.
Which constitutional protections apply to terrorist trials needs to be determined Michael John Garcia et. al, Legislative Attorney, former Assistant Secretary for Immigration and Customs th Enforcement, March 28 , 2011. Closing the Guantanamo Detention Center: Legal Issues. Congressional
Research Service http://www.fas.org/sgp/crs/natsec/R40139.pdf Whether the military commissions established to try detainees for war crimes fulfill constitutional requirements concerning a defendants right to a fair trial is likely to become a matter of debate, if not litigation. There is considerable prosecutorial discretion within the executive branch regarding which forum to utilize, but legislative enactments may potentially limit the exercise of such discretion, including by requiring detainees to be charged in a particular forum. The issues raised by the proposed closure of the Guantanamo detention facility have broad implications. Executive policies, legislative enactments, and judicial rulings concerning the rights and privileges owed to enemy belligerents may have long-term consequences for U.S. detention policy, both in the conflict with Al Qaeda and the Taliban and in future armed conflicts.
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Military Commissions are an Acceptable Form of Justice

Military commissions are historically fair Detlev F. Vagts, Bemis Professor of Law, emeritus, Harvard Law School, 2007, Military Commissions: The
Forgotten Reconstruction Chapter. American University International Law Review http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1020&context=auilr&sei-redir=1 As to their necessity, one concludes that commissions are needed where the civilian system is not in a position to press criminal cases. This was the conclusion of Congress and most commanding generals. Commissions would be necessary in another occupation experience where local courts were not functioning, though it might be wise to use civilian judges. In general, commissions can perform adequately and swiftly. The experiment of 2001 with reviving commissions ran into difficulties because it took a long time to adapt established courts-martial practices to the supposed needs of the new assignment. That adaptation was hotly contested, since it involved the first step backward in the history of military justice. The twenty-first century commission system thus negated a major advantage of military courts-that they can convene swiftly and at the scene of the crime. The cases examined seem to have been careful and fair, with convictions not automatic.
Military commissions offer protection to detainees th Charles Stimson, Senior Legal Fellow at the Heritage Foundation, April 5 , 2011,
Testimony before Subcommittee on Crime, Terrorism and Homeland Security, United States House of Representatives. http://www.heritage.org/research/testimony/2011/04/justice-for-america-using-military-commissions-to-try-the911-conspirators military commissions provide robust protections to detainees. Indeed, compare the procedural protections and rules contained in the Military Commissions Act of 2009 to standard U.S. courts-martial and other international tribunalsas I haveand you will see that todays commissions offer unlawful combatants more robust due process and protections that any international tribunal ever created.
The President clearly holds the power to convene military commissions rd Ruth Wedgwood, Professor of Law at Yale Law School, December 3 , 2001, The Case for Military Tribunals
Wall Street Journal. http://www.law.yale.edu/news/3297.htm Congress will want to consult on the nature of the military tribunals established by President Bush. Congress's input will be useful to the administration in crafting rules of procedure and evidence, as well as in thinking about added safeguards for alleged terrorists discovered within the U.S. Civilian judges can serve on military tribunals (civilians served at Nuremberg), and few hearings may be closed, except for sensitive portions. Habeas corpus review remains available for aliens arrested in the U.S. But it is also plain that Congress long ago agreed to the president's power to convene military commissions (under U.S. Code, Title 10, Section 821). In addition, the president has inherent constitutional power as commander-in-chief to convene such tribunals, an argument acknowledged by Chief Justice Harlan Fiske Stone in a 1942 opinion. (Stone, writing for a unanimous Supreme Court, declined to set aside the military trial and execution of German saboteurs who had entered the U.S. to destroy war plants.) The president is also authorized by statute to write rules of procedure and proof for military commissions, and to decide whether or not it is "practicable" to adopt the ordinary rules of common law and evidence.
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Tribunals make the prosecution process much easier, more streamlined th Kendall Coffey, former U.S. attorney and current Miami lawyer, May 26 , 2003. The Case For Military
Tribunals. Wall Street Journal http://kendallcoffey.com/pdfs/publications/Case_for_Military_Tribunals.pdf In a military tribunal, the executive branch could more flexibly address the security issues by, if necessary, limiting disclosure of the most sensitive evidence to the tribunal members themselves. Although Miranda is not an issue with Moussaoui, aggressive questioning by military and intelligence operatives could be treated more suitably in tribunals without the potential reconfiguration of Fifth Amendment rights that could result if terrorism is lodged in judicial proceedings. Other security issues, ranging from the personal safety of judges and jurors to utilization of electronically intercepted communications, are also much more manageable with tribunals. Judge Brinkema's ruling on the Ramzi testimony could well go to the Supreme Court. But it is ultimately inappropriate for our civil justice system to be forced to choose between protecting the Constitution and protecting citizens from foreign enemies. Tribunals may turn out to be the ally of civil liberties, insulating the constitutional traditions in our civilian courts from the pressures of foreign terrorism.
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Commissions provide full due process Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis The detainees interned at Guantanamo Bay, Cuba are not protected noncombatant civilians being held without charge. They are unlawful combatants, captured in time of armed conflict and interned during an ongoing armed conflict. Should the U.S. try a detainee by military commission for [*81] crimes of war or crimes related to war, the detainee will be guaranteed full and fair due process in complete compliance with U.S. law. Such due process will meet or exceed international standards of justice. The military commission process, although different from a domestic civilian criminal court, will be fair. To uphold the international Rule of Law, the U.S. must remain stalwart in holding responsible those who would willfully violate international humanitarian law and the international laws of armed conflict. Convening U.S. military commissions in such cases is lawful, and is a pragmatic and just means to the furtherance of this very necessary end.
Military Commission flexibility is essential to meeting the demands of armed conflict and hegemony Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis More specifically, the military commission evidence standard and rules recognize the diaspora, deaths, or incapacitation of material witnesses, the destruction or loss of evidence buried under rubble on the field of battle, the distinction that military intelligence is gathered primarily to aid the current war effort rather than for any conjectural subsequent use as prosecutorial evidence, the availability of military-affiliated witnesses who are still engaged in [*77] ongoing combat operations, the high operational tempo and speed of maneuver in modern warfare, the constant flux and changing of battle lines and positions, and the location of relevant evidence in distant battlefields halfway around the globe. The difficulty in evidence retrieval, maintenance of a proper chain-of-custody, the continued safeguarding during ongoing military operations, and the general chaos and mayhem associated with international armed conflict and the battlefield amplify the problem.
Leadership is essential to prevent global nuclear exchange Zalmay Khalilzad, RAND, The Washington Quarterly, Spring 1995
Under the third option, the United States would seek to retain global leadership and to preclude the rise of a global rival or a return to multipolarity for the indefinite future. On balance, this is the best long-term guiding principle and vision. Such a vision is desirable not as an end in itself, but because a world in which the United States exercises leadership would have tremendous
advantages. First, the global environment would be more open and more receptive to American values -democracy, free markets, and the rule of law. Second, such a world would have a better chance of dealing cooperatively with the world's major problems, such as nuclear proliferation, threats of regional hegemony by renegade states, and low-level conflicts. Finally, U.S. leadership would help preclude the rise of another hostile global rival, enabling the United States and the world to avoid another global cold or hot war and all the attendant dangers, including a global nuclear exchange. U.S. leadership would therefore be more conducive to global stability than a bipolar or a multipolar balance of power system.
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Commissions key to post hostilities imprisonment David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C. office of Baker & Hostetler, and served
in the U.S. Justice Department under Presidents Reagan and Bush Sr, ,An Assessment of the Recommendations of the American Bar Association Regarding the Use of Military Commissions in the War on Terror, The Federalist Society for Law and Public Policy Studies, 2/15/2005, http://www.fedsoc.org/Publications/Terrorism/ABAResponse.PDF
Finally, there is a third approach open to the United States in dealing with individual al Qaedas and Talibs who cannot safely be released once their organizations are crushed. Each of these individuals remains an unlawful combatant and, as such, each has violated the laws and customs of war, and is subject to criminal prosecution and punishment. As the Supreme Court explained in Ex parte Quirin, "[u]nlawful combatants . . . are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.48 The President's November 13, 2002 Military Order, and Secretary Rumsfeld's Department of Defense Military Commission Order No. 1 (Mar. 21, 2002), established a process for such prosecutions which, as discussed below, fully complies with relevant due process requirements. Military commissions can impose lengthy sentences of imprisonment, which would give
the United States the legal right to hold convicted al Qaeda and Taliban members after the close of hostilities. Indeed, this would be the case even if they were entitled to the rights and privileges of POWs.
This is key to prevent terrorism David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C. office of Baker & Hostetler, and served in the U.S. Justice Department
under Presidents Reagan and Bush Sr,
,An Assessment of the Recommendations of the American Bar Association Regarding the Use of Military
Commissions in the War on Terror, The Federalist Society for Law and Public Policy Studies, 2/15/2005, http://www.fedsoc.org/Publications/Terrorism/ABAResponse.PDF In the case of al Qaeda and Taliban members, it may be argued that the purpose of their detention is not to "affix culpability" for criminal acts (although they could be criminally prosecuted), but to ensure that they do not rejoin the battle against
the United States. This would be merely an extension of the rationale for holding such individuals, like legitimate POWs, for the duration of the armed conflict. Detention beyond the close hostilities would be required because, unlike in the case of POWs, there is no recognized authority, in the form of a state, with which the United States can conclude a peace agreement, and that can guarantee the "demobilization" of these individuals once they are repatriated. Similarly, there is little doubt that the individuals involved would not be deterred by the threat of detention. It is clear that they do not believe that they have, in any sense, been engaged in criminal conduct, and even the prospect of certain death has not deterred the actions of some in their efforts to attack the United States. Indeed, most significantly, their determination to continue the war against the United States is not obviously subject to the sort of cost/benefit reasoning that ordinary criminals (including other terrorists like the Provisional Irish Republican Army), can be expected to perform. The evidence strongly suggests that many al Qaedas and Talibs believe that they are engaged in a "holy war," sanctioned by God, and that they will be rewarded in heaven for acts which carry the severest penalties on earth. Because of these beliefs, the ordinary calculation necessary for imprisonment to have a deterrent effect are not present, and they can fairly be described as simply being beyond deterrence . Obviously, this analysis has some highly troubling aspects. For some, it may
bring to mind the Soviet practice of using a mental health "diagnosis" as a means of justifying the imprisonment or commitment of dissidents. The situations are, however, 41 United States v. Salerno, 481 U.S. 739, 746 & 748 (1987). 42 Kansas v. Hendricks, 521 U.S. 346, 361-62 (1997). 18 fundamentally different. The key question would not be whether the members of al Qaeda or the Taliban can be said to suffer from some form of mental illness or disorder. Such disorders are certainly one reason, as the Supreme Court held in Hendricks, why an individual may not be subject to deterrence, suggesting that incarceration is not imposed for purposes of punishment. It is the individual's susceptibility to deterrence, however, that is the critical inquiry. A sincerely held religious
belief can undermine the assumptions on which the principle of deterrence, or the normal instinct for self-preservation, is based just as effectively as any psychological disorder, real or imagined. Historic
examples of this phenomenon include the American Indian "Ghost Dancers" in the 1880s and 1890s, who believed that wearing magical articles of clothing would protect them from bullets, and the Chinese Boxers, who held similar beliefs a few years later. Here,
the justification for holding certain members of al Qaeda and the Taliban in preventative detention would be that, because they are not subject to the normal calculations that make deterrence effective -regardless of the reason why that is the case -- the purpose of their detention is not punitive. As a second alternative, the United States could take the position that the emergence of widespread terrorism by groups who are not tied to any
one nation-state -- a state that could be held accountable for their actions and expected to control them -
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism - presents circumstances that have not been confronted by the community of nations for several centuries. The
fact that many of these individuals are suicidal, as well as homicidal, also suggests that the case is sui generis. Consequently, the current international norms -- both customary and treaty-based -- would simply be inapplicable because they were developed to address fundamentally different circumstances.
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And, Federal Courts increase the risk of terrorist attacks Kenneth Anderson, Professor of Law, Washington College of Law, American University,
THE MILITARY TRIBUNAL ORDER: What to do with Bin Laden and AL Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base, Harvard Journal of Law & Public Policy, Spring, 2002, 25 Harv. J.L. & Pub. Pol'y 591 What are the limitations of the U.S. federal courts in trying cases of these kinds? First, there are evidentiary
limitations on what can be introduced in court. Unlike European criminal courts and the Yugoslavia tribunal--the darlings of international human rights advocates who are now complaining of the Bush Administration's plans under the Military Order--hearsay statements of probative value cannot be introduced in U.S. district court. Thus, as Wedgwood says, "bin Laden's telephone call to his mother, telling her that 'something big' was imminent, could not be entered into evidence if the source of information was his mother's best friend." n37 Second, there are limitations on what the intelligence community, concerned with possible
future attacks rather than punishing past attackers, are willing to publish in open court . The 1980 Classified
Information Procedures Act gives rules on using secret information at trial, but trials must remain open. Similarly important is information that is non-classified, but of great interest to terrorists, if published for example over the Internet--an example might be the capture of a terrorist procedures manual, public knowledge of the capture of which would then allow terrorist groups to make adjustments. Another example might be the publication, as took place in the 1993 World Trade Center bombing, of extensive engineering data on the construction of the towers; such information is public but not easy to obtain, unless, for example, it is brought into open court in a trial. The third reason is the long-term protection of participants, in a setting in which,
because the perpetrators are driven by ideology rather than money, revenge may be considered a sacred, and hence permanent, obligation.
Unchecked terrorism will result in extinction Yonah Alexander, professor and director of the Inter-University for Terrorism Studies in Israel and the United States. Terrorism myths and realities, The Washington Times, August 28, 20 03
Last week's brutal suicide bombings in Baghdad and Jerusalem have once again illustrated dramatically that the international community failed, thus far at least, to understand the magnitude and implications of the terrorist threats to the very survival of civilization itself. Even the United States and Israel have for decades
tended to regard terrorism as a mere tactical nuisance or irritant rather than a critical strategic challenge to their national security concerns. It is not surprising, therefore, that on September 11, 2001, Americans were stunned by the unprecedented tragedy of 19 al Qaeda terrorists striking a devastating blow at the center of the nation's commercial and military powers. Likewise, Israel and its citizens, despite the collapse of the Oslo Agreements of 1993 and numerous acts of terrorism triggered by the second intifada that began almost three years ago, are still "shocked" by each suicide attack at a time of intensive diplomatic efforts to revive the moribund peace process through the now revoked cease-fire arrangements [hudna]. Why are the United States and Israel, as well as scores of other countries affected by the universal nightmare of modern terrorism surprised by new terrorist "surprises"? There are many reasons, including misunderstanding of the manifold specific factors that contribute to terrorism's expansion, such as lack of a universal definition of terrorism, the religionization of politics, double standards of morality, weak punishment of terrorists, and the exploitation of the media by terrorist propaganda and psychological warfare. Unlike their historical counterparts,
contemporary terrorists have introduced a new scale of violence in terms of conventional and unconventional threats and impact. The internationalization and brutalization of current and future terrorism make it clear we have entered an Age of Super Terrorism [e.g. biological, chemical, radiological, nuclear and cyber] with its serious implications concerning national, regional and global security concerns. Two myths in particular
must be debunked immediately if an effective counterterrorism "best practices" strategy can be developed [e.g., strengthening international cooperation]. The first illusion is that terrorism can be greatly reduced, if not eliminated completely, provided the root causes of conflicts - political, social and economic - are addressed. The conventional illusion is that terrorism must be justified by oppressed people seeking to achieve their goals and consequently the argument advanced by "freedom fighters" anywhere, "give me liberty and I will give you death," should be tolerated if not glorified. This traditional rationalization of "sacred" violence often conceals that the real purpose of terrorist groups is to gain political power through the barrel of the gun, in violation of fundamental human rights of the noncombatant segment of societies. For instance, Palestinians religious movements [e.g., Hamas, Islamic Jihad] and secular entities [such as Fatah's Tanzim and Aqsa Martyr Brigades]] wish not only to resolve national grievances [such as Jewish settlements, right of return, Jerusalem] but primarily to destroy the Jewish state. Similarly, Osama bin Laden's international network not only opposes the presence of American military in the Arabian Peninsula and Iraq, but its stated objective is to "unite all Muslims and establish a government that follows the rule of the Caliphs." The second myth is that strong action against terrorist infrastructure [leaders, recruitment, funding, propaganda, training, weapons, operational command and control] will only increase terrorism. The argument here is that law-enforcement efforts and military retaliation inevitably will fuel more brutal acts of violent revenge. Clearly, if this perception continues to prevail, particularly in democratic societies, there is the danger it will paralyze governments and thereby encourage further terrorist attacks. In sum, past experience provides useful lessons for a realistic future strategy. The prudent application of force has been demonstrated to be an effective tool for short- and long-term deterrence of terrorism. For example, Israel's targeted killing of Mohammed Sider, the Hebron commander of the Islamic Jihad, defused a "ticking bomb." The assassination of Ismail Abu Shanab - a top Hamas leader in the Gaza Strip who was directly responsible for several suicide bombings including the latest bus attack in Jerusalem -
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disrupted potential terrorist operations. Similarly, the U.S. military operation in Iraq eliminated Saddam Hussein's regime as a state sponsor of terror. Thus, it behooves those countries victimized by terrorism to understand a cardinal message communicated by Winston Churchill to the House of Commons on May 13, 1940: "Victory at all costs, victory in spite of terror, victory however long and hard the road may be : For
without victory,
there is no survival."
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Quirin Key to Commissions

Quirin is the key case on the use of military commissions David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C. office of Baker & Hostetler, and served
in the U.S. Justice Department under Presidents Reagan and Bush Sr, , Unlawful Belligerency and its Implications Under International Law, The National Security White Papers, 2003, http://www.fedsoc.org/Publications/Terrorism/unlawfulcombatants.htm The rules with respect to unlawful belligerency, essentially as articulated by Vattel above, have been followed by the United States throughout its history [9]. They were reaffirmed by the Supreme Court in Ex parte Quirin, [10]in which the Court noted a number of uthorities for the proposition that "unlawful combatants" are generally considered to be subject to summary disposition. Although both the rule and reasoning of Quirin have been questioned (at least with respect to the treatment of unlawful combatants captured in the United States), it remains the leading American case on the use of military commissions during wartime [11].
Quirin established that unlawful combatants could be tried in commissions David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C. office of Baker & Hostetler, and served
in the U.S. Justice Department under Presidents Reagan and Bush Sr, ,An Assessment of the Recommnedations of the American Bar Association Regarding the Use of Military Commissions in the War on Terror, The Federalist Society for Law and Public Policy Studies, 2/15/2005, http://www.fedsoc.org/Publications/Terrorism/ABAResponse.PDF Seventy-six years later, however, the Quirin Court made clear that individuals who undertake armed hostilities (i.e., belligerents who thereby lose their status as civilians) against the United States, but who do not meet the recognized qualifications for the status of "lawful combatants,"7 may be tried by military commissions in the United States.8 As explained above, that case involved eight Nazi saboteurs who had been landed by U-Boats along the East Coast, and who planned to carry out acts of sabotage and terror in the United States during World War II. At the same time, the Supreme Court took care to reaffirm its Milligan decision, distinguishing that case on the ground that the defendant there was a civilian, while the Nazi defendants were all "unlawful combatants," subject to the laws of war.
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Commissions Good MCA Solves

Commissions solves evidentiary concerns Newhouse News Service, Together, Bush and Senators Compose a Narrow Definition of Torture, 9/23/06,
lexis In June, the U.S. Supreme Court ruled that the system set up by the Bush administration to try detainees at Guantanamo violated the Uniform Code of Military Justice and the Geneva Conventions. Because of the ruling, the Bush administration sought congressional approval for a system that would be acceptable to the Supreme Court. Bush argued that giving detainees and their lawyers access to some of the evidence against them would endanger U.S. security. Telling a terrorist on trial who it was that provided prosecution evidence and how it was obtained would compromise anti-terror efforts. Sen. Lindsay Graham, R-S.C., who was an Air Force lawyer and is still in the Air Force Reserves, said such withholding of information would mean a defendant could be convicted without seeing the evidence. The compromise: Defendants will see all of the evidence that the jury sees. It will be up to the prosecution to determine what evidence will be put forward and what will remain classified. Prosecutors also will be allowed to enter evidence obtained through coercion if it was obtained before the Detainee Treatment Act became law in 2005. Information obtained through coercion after the DTA would be banned.
And, UCMJ cant be directly transcribed some modifications are inevitable proves status quo solves the aff Retired Adm. John D. Hutson served as the Navy's judge advocate general from 1997 to 2000. He is president and
dean of the Franklin Pierce Law Center in Concord, John D. Hutson: Congress must right a wrong on treatment of detainees, 9/11/2006, lexis However, that is not to say the court-martial system as outlined in the UCMJ and MCM could not or should not be modified. Indeed, some basic steps are necessary to make the system applicable in the terrorism context. Fundamentally, Congress would have to grant itself jurisdiction in order to create a legally sound system for military commissions. The War on Terror creates a unique environment where the Military Rules of Evidence may need to be adapted in some narrow and well-defined ways not with the sea changes the administration is proposing. Clearly, evidence resulting from any form of coercion should not be admissible under any circumstances. More broadly, Congress must not alter with our obligation of humane treatment.
The Military Commissions now arent so bad. National Public Radio (NPR), Detainee Deal First Impressions May Be Deceiving, 9/22/06, lexis
TOTENBERG: Both military lawyers and law professors who are expert in the field agree that the Senate gave the White House quite a bit on the question of the Geneva Conventions. But they also noted that the White House basically threw in the towel on procedures for military commissions, agreeing with Senator Lindsey Graham that whatever evidence is seen by the jury in trials at Guantanamo must be seen by the defendant too. The military's lawyers have long argued that under the Uniform Code of Military Justice evidence can be sanitized - cleansed of classified information - so that both the jury and the defendant can see the essence of the evidence without compromising national security, and this deal provides for just that. In addition, evidence that is not reliable because it is the result of coercion will not be permitted. And the person making that evaluation will be a professional military judge, not, as had been the case in the Bush system of tribunals, a designated military officer often with no legal training at all. One big caveat is that the standard for determining illegal coercion is the McCain Detainee Treatment Act, which only went into effect this year and does not cover those 14 al-Qaida suspects captured years ago subjected to harsh interrogation in secret prisons and only recently transferred to Guantanamo for trial. Scott Silliman, a retired Air Force colonel who now heads the Duke University Center on Law, Ethics and National Security, sees the deal as about a 55/45 win for the White House. Mr. SCOTT SILLIMAN (Executive Director, Center for Law, Ethics and National Security, Duke University): On military commissions I think the Senate
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism came out ahead. On international law and Geneva Conventions the administration got what it wanted. It's a compromise. Both sides got something.
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Commissions Good ECS

Commissions are best for trying enemy combatants fellow combatants are most qualified Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis Combatants who are accused of committing crimes during armed conflict are usually best and most fairly judged in military forums by their peers, fellow combatants who are knowledgeable about the profession of arms, martial honor, military culture and ethos, educated in the science and art of war, who have command or other military leadership experience, and who have military acumen and practical experience regarding LOAC, battlefield conditions, operations, and, customs. Given such specialized expertise, combatant peers can sensibly and more adequately evaluate and weigh armed conflict-related evidence of war crimes, defenses, aggravation, mitigation, and extenuation.
Commissions are uniquely effective for trying unlawful combatants Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis Military commissions arise out of LOAC, are subject to these laws, and in full compliance with them. Military commissions recognize the concerns specific to trying unlawful combatants captured in international armed conflict. Military commissions have universal jurisdiction as to crimes occurring within an international armed conflict. The jurisdiction of a military commission is based upon the alleged criminal act and is not necessarily dependent upon where the act occurred or whether the defendant's status is military or civilian. Moreover, as stated earlier, military commissions possess highly specialized competence and institutional expertise regarding military operations and are thus uniquely suited to trying crimes alleged to have occurred during a time of war.
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Commissions Good Flexibility

Commissions are fairer more evidentiary flexibility Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis The rules of evidence in a U.S. military commission also address the practicality that standard common law evidence procedures and principles cannot be applied strictly to. crimes that are alleged to have occurred in a zone of active combat. Accordingly, U.S. military commission rules of evidence, in limited circumstances, are crafted with more flexibility and less procedural formality. They are somewhat similar to the models of European civil law jurisdictions, and UN-sponsored war crimes tribunals such as the International Criminal Tribunal for Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Special Tribunal for Cambodia, as well as the recently established International Criminal Court. n77 [*75] Hence, in reaching an informed and just verdict, members of a U.S. military commission may admit and consider a broader range of probative evidence and give such evidence whatever weight is appropriate. n78 A U.S. military commission's latitude to admit and consider a more comprehensive gamut of both prosecutorial and defense evidence, that being evidence that has probative value to a reasonable person, is in practical acknowledgement of the character of war. The U.S. military commission "probative to a reasonable person" standard of evidence applies equally to both the prosecution and to the defense. The military commission evidence standard and rules pragmatically take into consideration that acquiring evidence in the battlefield environment is completely different from traditional peacetime law enforcement evidence gathering.
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Commissions Good Defendant Rights

Commissions accord defendants significant rights Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis The defendant in a U.S. military commission is presumed innocent and the conviction standard is proof beyond a reasonable doubt. Furthermore, a defendant receives full notice of all charges in the defendant's native language in advance of trial,. adequate time, to prepare for trial, a military defense [*79] attorney at no cost, the ability to be represented by a civilian defense attorney at the defendant's expense, a public trial subject to security requirements (open to the media to the maximum extent practicable), the ability to be present throughout the entire trial subject to security concerns, interpreters, the ability to review all the evidence the prosecution will use during the trial subject to security concerns, the protection that the prosecution is required to provide the defense all exculpatory evidence, the protection against selfincrimination, the protection that the military commission may not draw an adverse inference from the defendant's silence, the protection that nothing said by a defendant to defense counsel, or anything derived from such statements, may be used against the defendant at trial; the ability to obtain witnesses, documents, and other reasonable resources for use in defense, the ability to call defense witnesses and cross-examine prosecution witnesses, the ability to enter into a plea agreement in order to limit the severity of punishment, and many additional procedural protections. n80
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Commissions Good Due Process

Detainees will receive full due process protections Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
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Commissions Good Review

Even after a commission finding, independent review is mandatory Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis A special independent review panel (composed of members serving fixed nonrenewable two-year terms) automatically will review every [*80] conviction and sentence for material errors of law (to include sufficiency of the evidence). Review panel decisions will be in writing and publicly released (subject to security concerns). A review panel decision to return the case to the Secretary of Defense or his delegate, a civilian Appointing Authority, for dismissal of charges is binding. If a U.S. military commission renders a not guilty verdict, the protection against double jeopardy does not allow the not guilty verdict to be overturned. A conviction with its corresponding sentence is only final if approved by the U.S. President or, if the U.S. President so delegates, the U.S. Secretary of Defense. n81 Upon receipt from the Appointing Authority, the U.S. President, or, if the U.S. President so delegates, the U.S. Secretary of Defense, may grant clemency and "disapprove findings or change a finding of Guilty to a finding of Guilty to a lesser-included offense; or mitigate, commute, defer, or suspend the sentence imposed or any portion thereof." n82
Commissions Good Increasing Due Process Indefinite Detention

Increasing due process for suspects just encourages the administration to detain them indefinitely rather than prosecute them Bruce Ackerman. Detain Game, Slate Magazine 7/17, 2006
The bigger problemand the problem Congress still seems inclined to ignoreis the shaky justification for holding all the rest, seemingly indefinitely, without due process.This point will become even clearer now that the administration has formally agreed to be bound by the Geneva Conventions' promise of the basic judicial guarantees "recognized as indispensable by civilized peoples." By suddenly recognizing international law, the Bush administration will only make it easier for thoughtful Republicans in Congress to insist on the homegrown, and far more demanding, standards developed by the Uniform Code of Military Justice. And as the protagonists seriously debate the requirements of due process for our enemies, it will become increasingly tough for them to ignore the elephant roaming the room: The more due process granted these detainees, the harder it will be to convict them. And the harder it is to convict them, the more tempting it will be to detain these suspects indefinitely as enemy combatants. This, then, is the key problem: not what sorts of trials to hold for enemies accused of violating the laws of war, but how to deal with detainees who are not charged with any crimes at all. And in order to make progress on that issue, Congress must break it down into three parts: the who, the how, and the how long.The most important, but least discussed, issue, is who qualifies as an enemy combatant. Certainly, the army can legitimately detain combatants it captures on the battlefield. The Supreme Court made that clear two years ago in the Hamdi case arising out of the war in Afghanistan. But the administration wants a much broader hunting license. It insists on the power to sweep up suspects in the metaphorical "war" it is waging on "terrorism."Terrorism is merely a technique, involving intentional attacks on innocent civilians. But war isn't a technical matter. It is a life-and-death struggle against a particular enemy. We made war against Japan, not on kamikaze attacks. If we allow ourselves to declare war on a mere technique, we open up a dangerous path: authorizing the president to lash out at enemy combatants far removed from any traditional scene of combat.This has already happened in the case of Jose Padilla, an American citizen, who was picked up in 2002 in civilian clothes, without any weapons, at O'Hare Airport in Chicago. Then-Attorney General John Ashcroft declared that he was an enemy combatant bent on attacking an American city with a dirty bomb, but Padilla was never given a hearing that would have allowed him to contest the evidence against him. Instead, he was held in a military prison for more than three years before he was turned over to civil authorities to face trial on an unrelated criminal offense.
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Commissions Good Post Hostilities Imprisonment

Commissions key to post hostilities imprisonment David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C. office of Baker & Hostetler, and served
in the U.S. Justice Department under Presidents Reagan and Bush Sr, ,An Assessment of the Recommendations of the American Bar Association Regarding the Use of Military Commissions in the War on Terror, The Federalist Society for Law and Public Policy Studies, 2/15/2005, http://www.fedsoc.org/Publications/Terrorism/ABAResponse.PDF
Finally, there is a third approach open to the United States in dealing with individual al Qaedas and Talibs who cannot safely be released once their organizations are crushed. Each of these individuals remains an unlawful combatant and, as such, each has violated the laws and customs of war, and is subject to criminal prosecution and punishment. As the Supreme Court explained in Ex parte Quirin, "[u]nlawful combatants . . . are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.48 The President's November 13, 2002 Military Order, and Secretary Rumsfeld's Department of Defense Military Commission Order No. 1 (Mar. 21, 2002), established a process for such prosecutions which, as discussed below, fully complies with relevant due process requirements. Military commissions can impose lengthy sentences of imprisonment, which would give
the United States the legal right to hold convicted al Qaeda and Taliban members after the close of hostilities. Indeed, this would be the case even if they were entitled to the rights and privileges of POWs.
This is key to prevent terrorism David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C. office of Baker & Hostetler, and served in the U.S. Justice Department
under Presidents Reagan and Bush Sr,
,An Assessment of the Recommendations of the American Bar Association Regarding the Use of Military
Commissions in the War on Terror, The Federalist Society for Law and Public Policy Studies, 2/15/2005, http://www.fedsoc.org/Publications/Terrorism/ABAResponse.PDF In the case of al Qaeda and Taliban members, it may be argued that the purpose of their detention is not to "affix culpability" for criminal acts (although they could be criminally prosecuted), but to ensure that they do not rejoin the battle against
the United States. This would be merely an extension of the rationale for holding such individuals, like legitimate POWs, for the duration of the armed conflict. Detention beyond the close hostilities would be required because, unlike in the case of POWs, there is no recognized authority, in the form of a state, with which the United States can conclude a peace agreement, and that can guarantee the "demobilization" of these individuals once they are repatriated. Similarly, there is little doubt that the individuals involved would not be deterred by the threat of detention. It is clear that they do not believe that they have, in any sense, been engaged in criminal conduct, and even the prospect of certain death has not deterred the actions of some in their efforts to attack the United States. Indeed, most significantly, their determination to continue the war against the United States is not obviously subject to the sort of cost/benefit reasoning that ordinary criminals (including other terrorists like the Provisional Irish Republican Army), can be expected to perform. The evidence strongly suggests that many al Qaedas and Talibs believe that they are engaged in a "holy war," sanctioned by God, and that they will be rewarded in heaven for acts which carry the severest penalties on earth. Because of these beliefs, the ordinary calculation necessary for imprisonment to have a deterrent effect are not present, and they can fairly be described as simply being beyond deterrence . Obviously, this analysis has some highly troubling aspects. For some, it may
bring to mind the Soviet practice of using a mental health "diagnosis" as a means of justifying the imprisonment or commitment of dissidents. The situations are, however, 41 United States v. Salerno, 481 U.S. 739, 746 & 748 (1987). 42 Kansas v. Hendricks, 521 U.S. 346, 361-62 (1997). 18 fundamentally different. The key question would not be whether the members of al Qaeda or the Taliban can be said to suffer from some form of mental illness or disorder. Such disorders are certainly one reason, as the Supreme Court held in Hendricks, why an individual may not be subject to deterrence, suggesting that incarceration is not imposed for purposes of punishment. It is the individual's susceptibility to deterrence, however, that is the critical inquiry. A sincerely held religious
belief can undermine the assumptions on which the principle of deterrence, or the normal instinct for self-preservation, is based just as effectively as any psychological disorder, real or imagined . Historic
examples of this phenomenon include the American Indian "Ghost Dancers" in the 1880s and 1890s, who believed that wearing magical articles of clothing would protect them from bullets, and the Chinese Boxers, who held similar beliefs a few years later. Here,
the justification for holding certain members of al Qaeda and the Taliban in preventative detention would be that, because they are not subject to the normal calculations that make deterrence effective -regardless of the reason why that is the case -- the purpose of their detention is not punitive. As a second alternative, the United States could take the position that the emergence of widespread terrorism by groups who are not tied to any
one nation-state -- a state that could be held accountable for their actions and expected to control them -
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism - presents circumstances that have not been confronted by the community of nations for several centuries. The
fact that many of these individuals are suicidal, as well as homicidal, also suggests that the case is sui generis. Consequently, the current international norms -- both customary and treaty-based -- would simply be inapplicable because they were developed to address fundamentally different circumstances.
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Civilian Courts Bad General

Federal Courts bad evidentiary limitations, intelligence risks, saftey Kenneth Anderson, Professor of Law, Washington College of Law, American University,
THE MILITARY TRIBUNAL ORDER: What to do with Bin Laden and AL Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base, Harvard Journal of Law & Public Policy, Spring, 2002, 25 Harv. J.L. & Pub. Pol'y 591 What are the limitations of the U.S. federal courts in trying cases of these kinds? First, there are evidentiary limitations on what can be introduced in court. Unlike European criminal courts and the Yugoslavia tribunal--the darlings of international human rights advocates who are now complaining of the Bush Administration's plans under the Military Order--hearsay statements of probative value cannot be introduced in U.S. district court. Thus, as Wedgwood says, "bin Laden's telephone call to his mother, telling her that 'something big' was imminent, could not be entered into evidence if the source of information was his mother's best friend." n37 Second, there are limitations on what the intelligence community, concerned with possible future attacks rather than punishing past attackers, are willing to publish in open court. The 1980 Classified Information Procedures Act gives rules on using secret information at trial, but trials must remain open. Similarly important is information that is non-classified, but of great interest to terrorists, if published for example over the Internet--an example might be the capture of a terrorist procedures manual, public knowledge of the capture of which would then allow terrorist groups to make adjustments. Another example might be the publication, as took place in the 1993 World Trade Center bombing, of extensive engineering data on the construction of the towers; such information is public but not easy to obtain, unless, for example, it is brought into open court in a trial. The third reason is the longterm protection of participants, in a setting in which, because the perpetrators are driven by ideology rather than money, revenge may be considered a sacred, and hence permanent, obligation.
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Civilian Courts Bad Not for ECS

Civilian Courts arent designed to deal with enemy combatants issues and the LOAC Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis Civilian law enforcement organizations and civilian criminal courts are ill-equipped generally to investigate, assume jurisdiction over, and adjudicate criminal acts of war alleged to have occurred abroad by enemy combatants during an international armed conflict. In extraordinary circumstances involving national security, this is also true in regard to war crimes occurring on domestic soil. Indeed, a domestic civilian criminal justice system simply is not designed to render justice adequately to captured enemy soldiers accused of violations of LOAC that are alleged to have occurred in a theater of war many thousands of miles away. It follows that crimes committed by unlawful combatants within the context of an international armed conflict may remove such combatants from a domestic civilian criminal justice system and place them into a military forum authorized under LOAC.
Civilian Courts are only designed to deal with domestic criminals Kenneth Anderson, Professor of Law, Washington College of Law, American University,
THE MILITARY TRIBUNAL ORDER: What to do with Bin Laden and AL Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base, Harvard Journal of Law & Public Policy, Spring, 2002, 25 Harv. J.L. & Pub. Pol'y 591 It is a system, in other words, that fundamentally treats crime as a deviation from the domestic legal order, not fundamentally an attack upon the very basis of that order. Terrorists who come from outside this society, including those who take up residence inside this society for the purpose of destroying it, cannot be assimilated into the structure of the ordinary criminal trial. True enough, citizenship alone is enough to qualify a person to be tried for attacks upon that order, as in the case of a domestic terrorist such as Timothy McVeigh. But, in fact, the domestic legal system strains to acknowledge the awfulness of what someone like McVeigh has done: his crimes are not reducible to so many murders, so many injured victims, so much destruction of property, and so on in the way one thinks of ordinary criminals. The actual charges available to prosecutors in his trial, and hence the conduct of the trial itself, in a curious but profound way, missed the point of his act, which was not merely to murder people, but to make war upon the United States. McVeigh, like bin Laden and Al [*611] Qaeda, undertook not a deviation from the domestic order, but an attack upon it. n39 McVeigh's membership in the political community through citizenship was enough to grant him trial as though his acts were merely crimes and not attacks, but the moral reality is that McVeigh had transformed himself into a true outsider, not merely a deviant. He was not merely a criminal, but also an enemy. Al Qaeda has the same status--but the U.S. district courts are, by constitutional design, for criminals and not for those who are at once criminals and enemies. U.S. district courts are eminently unsuited by practicality but also by concept for the task of addressing those who planned and executed September 11.
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Civilian Courts Bad Terrorism

Civilian Courts dont deter against terror Osama would have been found innocent Kenneth Anderson, Professor of Law, Washington College of Law, American University,
THE MILITARY TRIBUNAL ORDER: What to do with Bin Laden and AL Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base, Harvard Journal of Law & Public Policy, Spring, 2002, 25 Harv. J.L. & Pub. Pol'y 591 If international tribunals are both an unrealistic and morally undesirable dream, trials of suspected terrorists in ordinary U.S. district courts also carry significant moral and practical downsides. For one, they merely extend the evident failure of U.S. policy over the past decade in dealing with terrorism against U.S. targets: the 1988 Lockerbie, Scotland plane explosion; the 1993 World Trade Center bombing; the 1996 Khobar Towers attack against U.S. military personnel in Saudi Arabia; the 1998 U.S. embassy bombings in Africa; and finally the 2000 attack on the U.S.S. Cole. American policy has been to regard the problem of terrorism against American targets, whether at home or abroad, as essentially a criminal matter, a question of long-arm criminal jurisdiction, under the investigation of the FBI, seeking extradition of suspects for prosecution by regular Justice Department prosecutors in ordinary U.S. district court. The CIA, notably, has been far less important than the FBI, and the Federal effort has been concentrated on solving past cases and bringing suspects in them to trial rather than taking intelligence actions aimed at preventing or deterring future action. The criminal law approach of seeking to solve past crimes, and treating terrorism not as an enemy to be battled, but criminals to book, is primarily defended on the grounds of its effectiveness. James Orenstein, for example, a former Clinton Administration Deputy Attorney General, claims that the U.S. government "has decades of experience and success in using civilian courts to combat organized crime, and it has successfully applied that experience to fighting terrorism." n33 His evidence for that claim is, first, that the civilian courts have broad powers to protect information, witnesses, informants, judges, jurors, and those involved in the judicial process. Second, the use of prosecutorial techniques developed in fighting organized crime has taught prosecutors that they can get testimony in return for deals with low ranking members of a conspiracy, and that putting defendants on trial together gives a great ability to show jurors the full extent of the criminal organization. Third, he says, civilian prosecutions [*608] have obtained convictions in important cases--Sheik Omar Rahman, for example, in the 1993 World Trade Center bombing, or Wadih el-Hage, who was recently convicted (in a civilian court) for bombing the American embassies in Kenya and Tanzania," among others. n34 Few share Orenstein's belief in domestic civilian prosecution's effectiveness, however. More typical would be the assessment of Paul Williams and Michael Scharf: In the past, the United States has pursued a failed policy of domestic prosecution of terrorists. In the cases of the 1996 Khobar Towers attack in Saudi Arabia, the 1998 bombings of US embassies in Africa, and Cole attack in 2000, and the 1993 bombing of the World Trade Center towers, the U.S. has been able to prosecute only a handful of low-level culprits and ideological supporters. With potentially thousands of Al Qaeda terrorists about to fall into the hands of the U.S. military or Northern Alliance, this process will neither serve as adequate justice nor as an effective deterrent to further acts of terror. More strikingly, domestic prosecution prevents the early apprehension of terrorists, as was the case when the Clinton administration declined Sudan's offer in 1996 to turn over Osama bin Laden because there was not sufficient probable cause to try him in U.S. courts. n35
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Civilian Courts Bad Terrorism

Civilian Courts would become a terrorist target Kenneth Anderson, Professor of Law, Washington College of Law, American University,
THE MILITARY TRIBUNAL ORDER: What to do with Bin Laden and AL Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base, Harvard Journal of Law & Public Policy, Spring, 2002, 25 Harv. J.L. & Pub. Pol'y 591 The concerns about the effectiveness and practicality of civilian courts for trying terrorist suspects thus rest on its poor record, especially when one considers the scope of the attacks and their increasing audacity over time. The root sources of its failure is the process' alleged virtue--the use of models drawn from the fight against organized crime. Organized crime and drug smuggling are, however, essentially problems stemming from material greed. In stark contrast, the motives of Al Qaeda are apocalyptic and ideological. As Ruth Wedgwood observes: Perhaps it is only coincidence that the World Trade Center towers toppled the day before Al Qaeda defendants were due to be sentenced for the earlier bombings of East Africa embassies--in a Federal courthouse in lower Manhattan six blocks away. But certainly before September 11 no one imagined the gargantuan appetite for violence and revenge that bin Laden has since exhibited. Endangering America's [*609] cities with a repeat performance is a foolish act. n36
54
A2: Commission Bad Offense

Terminally non-unique military commissions have tried unlawful combatants since the 18 th century Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis Because of this, state practice and custom over time has been to convene military commissions to try unlawful combatants captured during armed conflict. For example, the U.S. convened military commissions in its Revolutionary War, the War of 1812, the Spanish-American War, and during its Civil War. Also, during WW II and immediately after its conclusion, the U.S. and its allies used military judicial forums (primarily military commissions) regularly to assume criminal jurisdiction over and try captured foreignnational combatants accused of violations of LOAC and other international laws. n74 The armed conflict ongoing against al-Qaeda is the first [*72] conflict since WW II that has necessitated the convening of U.S. military commissions.
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A2: Tribunals arent Competent 1/2

International Law doesnt provide specific mandates on what constitutes a competent tribunal the detaining power determines composition Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis A capturing party convenes a "competent tribunal" under Geneva Convention III art. 5 n50 when it is necessary to resolve a material factual issue [*50] of doubt as to the legal status of captured combatants. Geneva Convention III art. 5 does not purport to dictate the nature of a POW status tribunal, deferring to the detaining power as to tribunal procedures and composition. Art. 5 does not specify how tribunals are to be structured or organized. Neither does art. 5 instruct whether the tribunals are executive or judicial in nature. n51 Art. 5 does not instruct that the detaining power establish a separate tribunal for each detainee who has "fallen into the hands of the enemy." Art. 5 merely directs that doubt as to a captured combatant's status should be considered and settled by a "competent tribunal."
Competent Tribunals are only suppose to provide minimal due process for contesting errors in initial classification Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis Such individual art. 5 tribunals were designed to provide ad hoc on-the-scene minimal due process to rectify expediently the battleground front-line factual errors of combatant status. For example, individual art. 5 tribunals are meant to ensure that a few displaced civilians or other individual noncombatant captives rounded up by mistake and who are in the proximity of belligerent activity taking place in a combat zone, are then released promptly. Art. 5 tribunals are also meant to provide POW status to a deserter of an opposing armed force who has discarded his or her uniform, to confer timely POW status to a captured lawful combatant who lost an identification card or to a lawful combatant captured off-duty (or otherwise legitimately out-of-uniform). n52 [*51] As stated earlier, art. 5 defers to the detaining power and does not indicate how individual competent tribunals should be organized or structured. Generally, however, an individual art. 5 tribunal would be non-adversarial and limited in scope.
Present commissions provide more then required due process under International law Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis The U.S. military commission system established by the U.S. President in his Military Order of November 13, 2001, and implemented by the U.S. Secretary of Defense in his Military Commission Order No. 1, March 21, 2002, provides an unlawful combatant defendant extensive due process protection in compliance with U.S. domestic law and with customary international law. Unlawful combatant detainees tried by U.S. military commissions under such executive orders will receive more favorable judicial proceedings and legal protections than historically have been provided in military commissions of unlawful combatants during previous conflicts. The U.S. President exercised his discretion to foster impartial, full, and fair trials, providing unlawful combatants tried in U.S. military commissions more procedural protections than what is required by international law. n79
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A2: Tribunals arent Competent 1/2

Commissions have all due process rights required by international law Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
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A2: Al Qaeda should get comp Tribunals 1/2

No need for tribunals for al qaeda/Taliban detainees too much evidence proving unlawful combatant status Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis As stated earlier, particularized art. 5 tribunals are only convened in extraordinary legitimate battlefield cases that involve specific questions of fact. When there is no doubt as to unlawful combatant status, when a competent authority has further legitimately established the presumption of unlawful combatant status, and when there is no further factual uncertainty or ambiguity of combatant status existing, any individual tribunal then convened gratuitously would be a waste of time and resources. It would provide Taliban and al-Qaeda detainees unnecessary and noncompulsory due process in the face of overwhelming evidence of their unlawful belligerency.
Tribunals are only for questions of factual doubt unnecessary for en masse determinations Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis As stated earlier, art. 5 tribunals are designed to resolve individual cases of factual doubt as to combatant status. Yet, there is no doubt as to the following facts that that both al-Qaeda and the Taliban en masse systematically and willfully failed to meet the four criteria of lawful belligerency; and, that al-Qaeda members en masse are stateless. As a result, art. 5 tribunals are unnecessary. Such individualized art. 5 tribunals in the case of the detained Taliban and al-Qaeda enemy combatants would yield little if any additional probative or relevant evidence as to the detainees' lawful/unlawful combatant status.
Tribunals would only be used for terrorist theatrics Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia, U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis Instead, art. 5 tribunals would only serve to provide the detainees and their advocates with opportunities to misuse art. 5. The detainees and their appointed advocates would likely use art. 5 tribunals, not for any appropriate purpose of providing relevant factual testimony or other direct evidence exonerating the detainees from unlawful combatant status, but rather for illegitimate political and self-rationalizing theological pageantry. The same detainee advocates would then criticize the pre-determined outcomes of the [*53] tribunals, such pre-determined outcomes solidly based upon the manifest blatant misconduct of Taliban and al-Qaeda forces in armed conflict and al-Qaeda's classic unlawful combatant status. Ultimately, detainee advocates would describe the tribunals as gestures intended merely to allay the U.S. perceived misdirected international concern surrounding the lawful preventive internment of Taliban and al-Qaeda detainees.
A2: Al Qaeda should get comp Tribunals 2/2

Tribuals arent needed after a competent en masse detemrination Lt. Col. Joseph Bialke, B.S.C.J.S., M.A., & J.D. with distinction, University of North Dakota, LL.M. International and
Comparative Law, University of Iowa, is presently assigned as Staff Judge Advocate, Pacific Air Forces-Australia,
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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism U.S. Embassy, Canberra, Australia., Al Qaeda & Taliban Belligerency, and the International Laws of Armed Conflict, The Air Force Law Review, 2004, 55 A.F. L Rev 1, accessed: Lexis Despite al-Qaeda and the Taliban's egregious unlawful conduct during armed conflict and al-Qaeda's classic unlawful combatant status, some have commented that the U.S. as the detaining power should have convened individual tribunals under Geneva Convention III, art. 5, to make case-by-case determinations as to "lawful combatant versus unlawful combatant" status and, subsequently, "POW versus battlefield detainee" status. n57 However, as a result of al-Qaeda and the Taliban's substantiated en masse unlawful belligerency, the President's formal presumptive factual affirmation and legal holding, and the absence of sufficient evidence to overcome the established presumption of unlawful belligerency, there is no legal requirement for the U.S. to convene any individualized administrative tribunals to reconsider pro forma what has already been determined accurately and lawfully.
Article 5 Tribunals are only required if there is doubt as to a detainees status Brigadier General Thomas L. Hemmingway, In Defense of Military Commissions, The University of Memphis Law Review, Fall 2004, 35 U. Mem. L. Rev. 1, accessed: lexis
In order to clarify the current actions of the Department of Defense, it should be noted that the detained enemy combatants at Guantanamo Bay are not entitled to POW status pursuant to the Third Geneva Convention. n20 Under the Geneva Convention, an Article 5 tribunal is only required in the event that any doubt arises [*7] as to a person's status. n21 In February 2002, the President determined that al Qaeda and the Taliban were not entitled to POW status. n22 The President's reasoning was sound. Al Qaeda is not a state, it is not a party to the Geneva Convention, and it has no right to participate in international armed conflict.
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NATIONAL SECURITY IS THE PARAMOUNT VALUE

1. NATIONAL SECURITYS PROTECTION OF LIFE IS THE MOST IMPORTANT VALUE David Blunkett, Member of the Parliament of the United Kingdom, THE OBSERVER, p. np, http://www.observer.co.uk/Print/0,3858,4267173,00.html, accessed August 22, 2002. There are concerns that civil liberties will be eroded as we secure our democracy. There is a difficult balance to strike between national security, public protection and individual rights. We will approach these issues with care. But we must remember that the most basic human right is the right to life, and protecting the lives of its citizens is the first job of the state. We must therefore have the ability to act against wanton terrorism, against those who accept none of the social norms which allow dialogue to take place, negotiation to happen, or even rules of combat to be recognised and respected. Security and social order are the foundations of democracy. We must protect ourselves from the anarchy of a world where you cannot fly from place to place, visit friends, go about your business, or take a holiday 2. THE RIGHT TO LIFE IS A UNIVERSAL FUNDAMENTAL HUMAN RIGHT A.A. Canado Trindade, Ph.D. (Cambridge), Professor of international Law at the University of Brasilia and the Rio Branco Diplomatic Institute, ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW: NEW CHALLENGES AND DIMENSIONS, 1992, p. np, http://www.unu.edu/unupress/unupbooks/uu25ee/uu25ee0p.htm, accessed August 26, 2002. The right to life is nowadays universally acknowledged as a basic or fundamental human right. It is basic or fundamental because "the enjoyment of the right to life is a necessary condition of the enjoyment of all other human rights." As indicated by the Inter-American Court of Human Rights in its Advisory Opinion on Restrictions to the Death Penalty (1983), the human right to life encompasses a "substantive principle" whereby every human being has an inalienable right to have his life respected, and a "procedural principle" whereby no human being shall be arbitrarily deprived of his life. The Human Rights Committee, operating under the UN Covenant on Civil and Political Rights (and Optional Protocol), qualifying the human right to life as the "supreme right of the human being," has warned that the fundamental human right "ne peut pas tre entendu de faon restrictive" and its 77 protection "exige que les Etats adoptent des mesures positives." The Inter-American Commission on Human 78 Rights, likewise, has drawn attention to the binding character of the right to life. In its recent resolution no. 3/87, on case no. 9647, concerning the United States, the Inter-American Commission, after identifying a norm of jus cogens that "prohibits the State execution of children," warned against "the arbitrary deprivation of life" on the basis of a patchwork scheme of legislation that subjects the severity of the punishment (of the offender) to the 79 "fortuitous element of where the crime took place." Under international human rights instruments, the assertion of the inherent right to life of every human being is accompanied by an assertion of the legal protection of that basic human right and of the negative obligation not to deprive arbitrarily of one's life (e.g., UN Covenant on Civil and Political Rights, Article 6 [1]; European Convention on Human Rights, Article 2; American Convention on Human Rights, Article 4 [1]; African Charter on Human and Peoples' Rights, Article 4). But this negative obligation is accompanied by the positive obligation to take all appropriate measures to protect and preserve human life. This has been acknowledged by the European Commission of Human Rights, whose case-law has evolved to the point of holding (Association X versus United Kingdom case, 1978) that Article 2 of the European Convention on Human Rights imposed on states also a wider and positive obligation "de prendre des mesures adquates pour protger la vie." Taken in its wide and proper dimension, the fundamental right to life comprises the right of every human being not to be deprived of his life (right to life) and the right of every human being to have the appropriate means of subsistence and a decent standard of life (preservation of life, right of living). As well pointed out by Przetacznik, "the former belongs to the area of civil and political rights, the latter to that of economic, social and cultural rights." The fundamental right to life, thus properly understood, affords an eloquent illustration of the indivisibility and interrelatedness of all human rights.
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THE TERRORIST THREATS TO NATIONAL SECURITY ARE GRAVE

1. AL QAEDA ALREADY HAS NUCLEAR WEAPONS Barton Gellman, staff writer for THE WASHINGTON POST, TORONTO STAR, March 10, 2002, p. B1. Participants in those exercises say the intelligence community believes Al Qaeda could already control a stolen Soviet-era tactical nuclear warhead or enough weapons-grade material to fashion a functioning, if less efficient, atomic bomb. Such a view was expressed before Sept. 11, in early 2001, when the intelligence community devoted a full-day retreat to the subject early last year in Chantilly, Va., according to a source with first-hand knowledge. A majority of those present assessed the likelihood as negligible, the source says, but none of the more than 50 participants ruled it out. The consensus government view now is that Al Qaeda probably has acquired the lowerlevel radionuclides strontium-90 and cesium-137, many thefts of which have been documented in recent years. These materials cannot produce a nuclear detonation, but they are radioactive contaminants. Conventional explosives could scatter them in what is known as a radiological dispersion device, known colloquially as a "dirty bomb." 2. NUCLEAR TERRORISM WOULD KILL A QUARTER OF A MILLION PEOPLE Lachlan Forrow, et. al, associate professor of medicine Harvard Medical School, Nuclear Terrorism, BRITISH MEDICAL JOURNAL, February 9, 2002, http://bmj.com/cgi/content/full/324/7333/356?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&titleabstract= nuclear+terrorism&searchid=1016337281626_5868&stored_search=&FIRSTINDEX=0&resourcetype=1,2,3,4,10#res p1, accessed August 26, 2002. Using the CATS (Consequences Assessment Tool Set) software created by the US Federal Emergency Management Agency and the Defense Threat Reduction Agency, we have calculated the expected casualties from a 12.5 kiloton nuclear explosion at ground level in New York City. We placed the explosion in the port area to reflect concerns that a nuclear device could most easily enter a US city smuggled in a commercial cargo container. The blast and thermal effects of such an explosion would kill 52,000 people immediately, and direct radiation would cause 44,000 cases of radiation sickness, of which 10,000 would be fatal. Radiation from fallout would kill another 200,000 people and cause several hundred thousand additional cases of radiation sickness. In the wake of such an attack the ability to aid survivors would be very limited. About 1000 hospital beds would be destroyed by the blast, and 8700 more would be in areas with radiation exposures high enough to cause radiation sickness. The remaining local medical facilities would quickly be overwhelmed, and even with advance preparation outside help would be delayed. After the 1995 earthquake in Kobe, Japan, in which 6500 died and 34 900 were injured, there were long delays before outside medical assistance arrived, and this disaster had few of the complicating factors that would accompany a nuclear attack with extensive radioactive contamination. 3. A NEW WAVE OF TERRORISM WOULD HURT THE ECONOMY Stephen Biddle, Strategic Studies Institute, WAR AIMS AND WAR TERMINATION, January 2002, p. 1-2, http://carlisle-www.army.mil/usassi/waraims.pdf, accessed August 26, 2002. Nor is this all. As we have already seen, global economic health is at risk. The September 11 attacks have already plunged America into near-certain recession. With the world economys current weakness, more such strikes could induce far deeper crises both here and abroad. Some describe this as a war for cheap oil, but far more is at stake economically than just the price of gasoline at American service stations. A major, sustained, worldwide economic contraction is entirely possible if we fail to thwart a long-term continuation of mass-casualty attacks. These stakes are thus far closer to those of a major war than to traditional terrorism, and warrant responses appropriate to war in their scope and energy.
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SECURITY CONCERNS JUSTIFY CIRCUMSCRIBING RIGHTS

1. LIMITING INFORMATION ON DETAINEES IS CRITICAL TO COUNTER-INTELLIGENCE Robert McCallum, et al., Assistant Attorney General, ORAL ARGUMENT, May 29, 2002, p. np, http://cnss.gwu.edu/~cnss/oralargument.htm, accessed August 26, 2002. Isolated bits and pieces of information can be critical to the sophisticated intelligence analysts as indicated in those declarations. For instance, information sought on the arrest dates, on the arrest locations, on the common connections between multiple detainees. Those would allow a sophisticated intelligence analyst to identify the thrust, the scope, if you will, the direction of the on-going investigation. In the mosaic theory, Your Honor, we suggest that that would disclose the pattern, and the intelligence analysts would then know what we know, or at least be able to gauge reasonably what we know. They would be able to gauge reasonably who might be the sources of information for the investigation. More importantly, they might be able to gauge reasonably what we don't know, where we have not gone, what we have not done yet because we are not aware of it. And therefore they would be able to reprogram, re-adjust their plans going forward. It creates a real and not insignificant danger to individuals and to groups of individuals which I phrase as the public safety. 2. LIMITING INFORMATION IS NECESSARY FOR INTELLIGENCE GATHERING AND SAFETY Robert McCallum, et al., Assistant Attorney General, ORAL ARGUMENT, May 29, 2002, p. np, http://cnss.gwu.edu/~cnss/oralargument.htm, accessed August 26, 2002. If the disclosure occurs as requested by the plaintiff, it would deter the cooperation of the detainees. It would deter the cooperation of others who are associated with the detainees. It might allow terrorists to intimidate witnesses and potential witnesses. It would allow the destruction of existing evidence as indicated in the declarations, and it would also allow the fabrication of false evidence to mislead and disrupt the on-going investigation. Thirdly is the privacy interest. The established case law indicates that an association with an on-going investigation can create a significant stigma for those whose relationship with the investigation is revealed even if they are not targets or subjects. This is the most horrific attack in American history. It exposes the detainees and others related to this investigation to risks of retaliation by those who are misguided but incensed against terrorists, assuming, of course, that everyone who is a detainee must somehow be guilty of terrorist acts or terrorism support. And this risk exists both home here in the United States and abroad. I would also suggest that the reverse is also true. That disclosure of the identity of the detainees would expose them to risks from those who support terrorism, and allow the detainee's public safety to be at issue, to allow that of their families to be at issue, to allow that of their associates to be at issue, and to even allow the safety of detention facilities and detention personnel to be at issue. 3. NEW LAW ENFORCEMENT POWERS ARE NEEDED TO STOP NEW SECURITY THREATS Strom Thurmond, U.S. Senator from South Carolina, HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE, SEPTEMBER 25, 2001, p. np, http://frwebgate.access.gpo.gov/cgibin/useftp.cgi?IPaddress=162.140.64.21&filename=81140.wais&directory=/di skb/wais/data/107_senate_hearings, accessed August 26, 2002. Mr. Chairman, today the security of our Nation is at risk from an enemy unlike any we have faced before. The President is doing an excellent job in responding to the threat. We in the Congress have a duty to assist the President and our Nation at this time of great need. We are providing resources, but we also need to reform our laws to help law enforcement track down terrorists and prevent future attacks. The Attorney General's proposals are reasonable and entirely consistent with the Constitution. Many of them have been considered for years based on computer crime and other threats. Also, this legislation will allow intelligence and law enforcement communities to share more information which would have helped in advance of the tragedy of September the 11th. These reforms are overdue. This is not a time for endless deliberation and delay. This is a time to act.
62
LIMITING RIGHTS IS NECESSARY TO PRESERVE SECURITY

1. THERE IS A NECESSARY TRADEOFF BETWEEN SECURITY AND LIBERTY Ed O'Brien, adjunct professor of law at Georgetown University Law Center, SOCIAL EDUCATION, NovemberDecember 2001, p. 420. In times of crisis, constitutional, legal, or human rights are often limited, sometimes in small ways, sometimes in great. People are often willing at such times to give up certain rights--or to deny certain segments of the population some rights--to bring about other benefits, such as increased security and more efficient law enforcement. Following September 11, both the executive and the legislative branches of the federal government have spoken of limiting certain rights for two purposes: (1) to enable the government to detain, arrest, prosecute, and punish the people who were behind the terrorist attacks; and (2) to prevent future attacks. As Attorney General John Ashcroft said while defending the administration's proposed antiterrorism legislation, "We want to enhance the authority of the INS [Immigration and Naturalization Service] to detain or remove suspected terrorists from our borders." Senator Edward M. Kennedy (D-Mass.) responded, however, that "many of us have serious concerns about the administration's proposal to detain someone indefinitely on mere suspicion." Even House Majority Leader Dick Armey (R-Tex.), a conservative, said, "This is a tougher area for us.... [The issue] is how we equip our ... agencies with the tools they need while we preserve the most fundamental thing, which is the civil liberties of the American people." The tension between freedom and security in times of crisis was well-illustrated by President Bush's statement fourteen days after the tragedy: "Ours is a land that values the constitutional rights of every citizen, and we will honor those rights, of course, but we are at war ... and in order to win the war we must make sure the law enforcement men and women have got the tools necessary, within the Constitution, to defeat the enemy." 2. SEPTEMBER 11 REQUIRES US TO SACRIFICE LIBERTY FOR SECURITY Hillary Rodham Clinton, U.S. Senator for New York, BRINGING AMERICA BACK, July 29, 2002, http://clinton.senate.gov/speeches/020729_DLC.html, accessed August 20, 2002. Because of the attack here in New York, and at the Pentagon, we know more has to be done to safeguard and protect targets of opportunity, our ports, our borders, bridges, our tunnels.our nuclear power plants, our chemical plants. We've always been such a free and open mobile society that this is going to take some readjustment of our attitudes and feelings about what we're willing to give up and what is proper for us to give up in the tradeoff between security and liberty. But I think we all agree, once again, that we have to strike the right balance. We've got to make sure that we're as safe as possible. That we provide maximum protection against weapons of mass destruction, that we build up our infrastructure, both our physical infrastructure and our health infrastructure because we have to be ready no matter what happens, whether it's a biological, chemical or even radiological attack. 3. MOST AMERICANS ARE WILLING TO SACRIFICE LIBERTIES FOR SECURITY Muriel Dobbin, Staff Writer, THE DETROIT NEWS, July 7, 2002, http://detnews.com/2002/nation/0207/08/a03531241.htm, accessed August 20, 2002. Living under the continuing threat of terrorism that might prove worse than last September's attacks, Americans are faced with the dilemma of how much to sacrifice in civil liberties for safety. A new poll showing that almost half of 1,000 surveyed are willing to curtail basic freedoms to protect their country evokes concern among some civil libertarians, while others assert that a wartime mentality of survivalism has evolved over the nine months since the terrorists struck. Former Sen. Gary Hart, co-chairman of the U.S. Commission on National Security for the 21st Century, said it would be very difficult to find a balance when a pendulum was swinging between security and liberty. "A lot will depend on whether there are more attacks. If there are, we will suspend a lot more liberties," he predicted.
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LIMITING SOME RIGHTS IS CRITICAL TO KEEPING OTHER RIGHTS

1. APPLYING DOMESTIC RIGHTS TO FOREIGN COMBATANTS WOULD ERODE OTHER RIGHTS William P. Barr, former U.S. attorney general, and Andrew G. McBride, former assistant to the attorney general, THE WASHINGTON POST, November 18, 2001, p. B7. In confronting the al Qaeda network, this country is exercising its powers of national defense -- its "war powers" -to defend itself against attacks by an organized foreign force. When the country is engaged in such a "state of armed conflict," it has long been recognized under both our Constitution and international law that foreign forces are subject to trial by military tribunal for any offenses against the laws of war. It is equally well established that a foreign national who is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply to a domestic criminal prosecution. The president's decision to provide for military tribunals is well grounded in constitutional law, historical precedent and common sense. His decision will actually preserve our civil liberties by refusing to insist upon their application in a context where their incongruity would inevitably lead to their erosion. 2. CIVIL RIGHTS DEPEND UPON THE CONTINUED EXISTENCE OF THE STATE William H. Rehnquist, Chief Justice of the Supreme Court of the United States, ALL THE LAWS BUT ONE, 1998, p. 222-223. We must also ask whether in every case a ruling in favor of a claimed civil liberty is more desirable, more just, than a contrary result. The answer to this question will depend, in turn, on just what is meant by civil liberty. It is not simply liberty but civil liberty of which we speak. The word civil, in turn, is derived from the Latin word civis, which means citizen. A citizen is a person owing allegiance to some organized government, and not a person in an idealized state of nature free from any governmental restraint. Judge Learned Hand, in remarks entitled The Spirit of Liberty, delivered during World War II, put it this way: A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few... In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts to some degree in favor of orderin favor of the governments ability to deal with conditions that threaten the national well-being. It simply cannot be said, therefore, that in every conflict between individual liberty and governmental authority the former should prevail. 3. A SUCCESSFUL WAR ON TERROR IS CRITICAL TO INDIVIDUAL RIGHTS Robert L. Maginnis, vice president for policy at the Family Research Council, retired from the US. Army with the rank of lieutenant colonel, INSIGHT ON THE NEWS, July 15, 2002, p. 42. America's global war on terrorism significantly will advance human rights because it will free people from repression and the threat of terrorism. Until the war is over, however, expect temporary sacrifices for more security. Every soldier facing the enemy understands this unavoidable trade-off. At this very moment every American is like that soldier: We are in harm's way, and prudence is required for safety's sake. In his State of the Union address, President George W. Bush declared: "Rarely has the world faced a choice more clear or consequential--we choose freedom and the dignity of every life." Terrorism is the ultimate denial of civil liberty, and we who fight terrorism do so to preserve civil liberty for those who respect and yearn for human rights and democracy. Most Americans understand that the terror war is unlike any conflict the United States has ever fought. The war's battlefields are global, and the terrorists' methods are unconventional. They fight in the shadows. They target the innocent. They operate in small, secret cells in many countries. They hide in caves but employ modern communications and devastating weapons. They send their youth to their deaths as they murder innocents. Their allegiance is to a fanatical ideology, not to a country nor even to freedom. Unfortunately, the war on terrorism is necessary to protect civil liberties--indeed, to preserve civilization itself--and to begin the process of restoring human rights for repressed peoples. Afghanistan is the first phase.
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Terrorist Due Process WNDI

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Terrorist Due Process WNDI

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West Coast Publishing 2011 NFL LD-Due Process Rights to Non-Citizens Accused of Terrorism

PART III: SHORT ESSAY

PART IV: DEFINITIONS

Deterrence of Terrorists is Impossible

Poor Treatment of Detained Non-Citizens Leads to Increased Terrorism

Conventional Justice System Can Conduct Terrorist Trials/Detention

Life in Detention Is Terrible

MCA Turn: MCA expands enemy combatant status

MCA Turn: Plan stops enemy combatants in MCA

MCA Turn: Grossly expands enemy combatant definition

MCA Turn: ICCPR bans the MCA

PART VI: NEGATIVE

Conventional System Wont Work for Terrorist Suspects

Conventional Prisons Breed Terrorists

The conventional system needs changing

Military Commissions are an Acceptable Form of Justice

1NC Frontline 1/3

1NC Frontline 2/3

1NC Frontline 3/3

Quirin Key to Commissions

Commissions Good MCA Solves

Commissions Good ECS

Commissions Good Flexibility

Commissions Good Defendant Rights

Commissions Good Due Process

Commissions Good Review

Commissions Good Increasing Due Process Indefinite Detention

Commissions Good Post Hostilities Imprisonment

Civilian Courts Bad General

Civilian Courts Bad Not for ECS

Civilian Courts Bad Terrorism

Civilian Courts Bad Terrorism

A2: Commission Bad Offense

A2: Tribunals arent Competent 1/2

A2: Tribunals arent Competent 1/2

A2: Al Qaeda should get comp Tribunals 1/2

A2: Al Qaeda should get comp Tribunals 2/2

NATIONAL SECURITY IS THE PARAMOUNT VALUE

THE TERRORIST THREATS TO NATIONAL SECURITY ARE GRAVE

SECURITY CONCERNS JUSTIFY CIRCUMSCRIBING RIGHTS

LIMITING RIGHTS IS NECESSARY TO PRESERVE SECURITY

LIMITING SOME RIGHTS IS CRITICAL TO KEEPING OTHER RIGHTS

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