From Volume 81, Number 3 (March 2008)
Plenty of injustices go judicially unresolved. On the Supreme Court’s docket, however, injustices in the criminal context have become alarmingly perfunctory, and the cause is a single procedural mechanism: a piece of legislation passed in 1996 called the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Though in effect for more than ten years now, two representative cases serve to demonstrate the enormous power of the AEDPA.
From Volume 77, Number 4 (May 2004)
On February 19, 2003, a court in Hamburg, Germany convicted Moroccan national Mounir Motassadeq of over 3000 counts of accessory to murder in connection with the attacks of September 11, 2001. Motassadeq stood accused of being a member of the Hamburg terrorist cell that plotted and executed the hijacking of U.S. aircraft and subsequent attacks on the World Trade Center and Pentagon. He was convicted in a Hamburg higher regional court and sentenced to the maximum term of fifteen years in prison. Motassadeq’s was the first conviction related to the September 11 attacks in any jurisdiction.
On March 4, 2004, a German appellate court vacated this conviction and ordered a new trial after Motassadeq’s lawyers successfully argued that the U.S. government withheld potentially exculpatory evidence during the first trial. In citing the failure of the United States to cooperate with the German courts, Judge Klaus Tolksdorf, presiding judge of the five-judge panel, stated that “‘under the German law, all available evidence must be made available . . . [and] the justice system could not bend to accommodate security concerns stemming from international efforts to fight terrorism. . . . [T]he fight against terrorism cannot be a wild, unjust war.’”
Given that the murders took place on American soil and that the vast majority of victims were American citizens, it may come as a surprise to the American public that their government did not attempt to extradite Motassadeq so that he could face trial in U.S. courts. After all, the United States has held Zacharias Moussaoui since prior to September 11 and charged him with six counts of conspiracy in the aftermath of the attacks. President George Bush himself promised “to pursue the terrorists in cities and camps and caves across the earth.” The United States was willing to pursue regime change in Afghanistan and indefinitely detain al-Qaida suspects in Cuba, and it would stand to reason that the United States would seek custody of anyone who was suspected of aiding the perpetrators of September 11.
From Volume 76, Number 6 (September 2003)
Laura Dickinson’s recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as of the roles played by the controversial procedure and tribunals when fighting terrorism. She meticulously traces how detentions and the commissions evolved, trenchantly criticizes them, and persuasively shows international tribunals’ comparative advantage. Dickinson accords relevant domestic case precedent a somewhat laconic analysis, however. For example, she briefly mentions separation-of-powers concerns and Supreme Court opinions that detentions and military commissions implicate while rather tersely assessing Ex parte Quirin, the Second World War decision on which President George W. Bush’s Administration has heavily relied to detain suspects, to create the tribunals, and to support numerous antiterrorism initiatives, especially litigation. Dickinson suggests that closer evaluation of these critical rulings is unwarranted because they lack application for her work and others have explored the opinions. Dickinson’s treatment allows many observers, most prominently cabinet members and federal judges, to overstate Quirin and to ignore Youngstown Sheet & Tube Co. v. Sawyer.
Dickinson contributes substantially to the ongoing debate over the use of detentions and military commissions in national emergencies. She illuminates myriad complex phenomena and convincingly demonstrates how international tribunals are preferable. Her recommendation may prove superior in terms of theory, policy, and international law. Nonetheless, the very realpolitik that Dickinson so incisively criticizes, and is so clearly exemplified by the Bush Administration’s war on terrorism, mandates elaboration of the governing United States case law.