Vol 37. No.3 Spring 2013 | School of Law | SIU

Vol 37. No.3 Spring 2013

GUANTANAMO BAY: WHAT NEXT?

ARTICLES

Introduction

Lucian E. Dervan (487)

Guantanamo and the End of Hostilities

Eric Talbot Jensen (491)

Detainees in the War on Terror have been at Guantanamo Bay for over a decade.  The justification for these detentions has been, at least in part, the on-going hostilities in Afghanistan.  However, President Obama’s announcement in his 2013 State of the Union address that “by the end of [2014], our war in Afghanistan will be over” may undercut the continuing detention authority for at least some of these Guantanamo detainees.  This Article analyzes the legal doctrine of release and repatriation in light of President Obama’s announcement and concludes that the President’s determination that hostilities have concluded between specific Parties to an armed conflict and the corresponding withdrawal of troops from the area of conflict creates a presumption that detainees from that conflict should be repatriated.  This presumption may be overcome on an individual basis by a finding that released and repatriated fighters will return to the battle.

The Role of International Law and Institutions in U.S. Detention Policy and Practices

Cindy Galway Buys (513)

Many of the detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, have been held there for more than ten years by the U.S. government without formal charges or a trial.  This Article uses the story of Djamel Ameziane, an Algerian national captured in Pakistan in 2002 and handed over to U.S. authorities, to illustrate the problems that face many of the remaining detainees.  Mr. Ameziane’s case has languished in U.S. courts for eight years.  Failing to obtain timely relief from U.S. authorities, Mr. Ameziane has petitioned for relief from the Inter-American Commission on Human Rights.  His petition raises the question—what role can or should international law and international bodies play in resolving the cases of the remaining detainees at Guantanamo Bay?  Although many of these international tribunals lack direct authority to enforce any violations of international law, this Article argues that there is good reason for the United States to heed international law if it wishes to effectively pursue its War on Terror.

Cuba and State Responsibility for Human Rights at Guantanamo Bay

Michael J. Strauss (533)

Guantanamo Bay is an integral part of Cuban sovereign territory where the United States enjoys “complete jurisdiction and control” under terms of a bilateral lease. In view of alleged human rights abuses at the site, this Article assesses whether Cuba may be found to share responsibility under international law if the United States engages in internationally wrongful acts there—a question that can have implications whenever one state allows another to use its sovereign territory through a lease or similar arrangement.

Applying International Fair Trial Standards to the Military Commissions of Guantanamo

David J. R. Frakt (551)

The Military Commissions Act was significantly revised in 2009.  Despite the undeniable improvements, questions remain as to whether the revised commissions comply with international law.  Some critics assert that military commissions are not “regularly constituted courts” and therefore are not in compliance with the Geneva Convention, or that the military commissions do not meet international fair trial standards.  On the other hand, the current Chief Prosecutor argues that the military commissions meet or exceed applicable fair trial standards under international humanitarian law.  This Article addresses the question of whether military commissions under the MCA of 2009 meet applicable international rules of law and fair trial standards, using a two-pronged analysis.  First, the Article describes what international laws apply to military commissions conducted by the United States at Guantanamo.  Then, the specific fair trial requirements of these laws are identified and analyzed to determine whether the rules and procedures, both in theory and in practice, comply with these standards.  The Article concludes that, while military commissions arguably now comply with international humanitarian law, they still fall short, at least on paper, of meeting the more robust fair trial standards found in international human rights law.  While current military commission rules and procedures are in substantial compliance with these standards, significant concerns remain about the potential for the admissibility of evidence obtained by coercive means, the retroactive prosecution of non-war crimes in what is ostensibly a war crimes tribunal, and the openness of the process.

The 9/11 Military Commission Motion Hearings:  An Ordinary Citizen Looks at Comparative Legitimacy

Benjamin G. Davis (599)

Under the Military Commission Act of 2009, the 9/11 Military Commission has been proceeding at Guantanamo Bay since May 2012.  As an ordinary citizen observer in October 2012 at a remote feed in Fort Meade, Maryland, and in late January 2013 at Guantanamo Bay, the author has followed the 9/11 Military Commission motion hearings.  Numerous dualities became readily apparent: Guantanamo Bay as a tropical paradise and an unseen tropical detention hell; the impact of unseen detention and interrogation “offscreen” on the courtroom process “onscreen”;  the virtual presence of offscreen classification authorities in the courtroom and the judge’s control; the flexible law space of a Military Commission Act built to stand alone and its amenability to diverse interpretations with other federal law and practice (Article III courts and courts-martial); the operability/inoperability and applicability/inapplicability of the Constitution; the defendants and the families of 2976 victims; military honor and duty and the intelligence community; legitimate and illegitimate government secrets and the citizen’s right to the truth; the domestic observer and the international observer;  a domestic law vision and an international law vision.  All of these dualities (and others that become apparent as one processes the experience) flow together to make Guantanamo Bay more than just a place; they make it an idea.  After grappling with the legitimacy of the Guantanamo Bay idea, the author suggests one ordinary citizen’s view of what our next choices on adjudication, torture, indefinite detention, and accountability should be.

Military Commissions and the Conundrum of Classified Evidence: A Semi-Panglossian Solution

Christopher W. Behan (643)

Classified information presents enormous complexities and risks in an American terrorism trial, whether in federal criminal court, a court-martial, or a military commission.  The discovery and trial rights of the defendant, national security concerns, and the American public’s traditional right to “every man’s evidence” create tensions at trial that are not easily resolved.  Congress created a new system for dealing with classified information at trial in the Military Commissions Act of 2009 (MCA 2009).  The MCA 2009, as written, provides a superior framework for the discovery, declassification, and trial use of classified evidence than is currently available in federal criminal terrorism trials or military courts-martial.

 The MCA 2009 classified information procedures, are, however, doomed to failure by three intractable shortcomings in the military commissions at Guantanamo Bay.  First, Executive Branch agencies continue to conduct intelligence gathering operations against the Guantanamo Bay detainees and their defense counsel.  These operations create a host of ethical problems and discovery issues, as well as creating a constant stream of new classified information that must be dealt with in order to ensure fair trials by military commission for the detainees.  Second, Executive Branch policies and a protective order prevent detainees from introducing evidence about the interrogation techniques that were used against them to obtain statements and other information.  Even though the MCA 2009 would permit fully litigating these issues in a secure environment, free from public disclosure, Executive Branch agencies have decided that the personal experiences of these detainees is classified and cannot be discussed in court.  Thus, by fiat, the Executive Branch has frustrated Congressional intent, mooted many of the MCA 2009 classified evidence procedures, and ensured that there will forever be questions about whether the detainees received a fair trial in which they had an opportunity to fully defend themselves.  Third, because there is no separation of powers in the military commissions system, there is no independent judiciary to counter the nearly unrestricted power of Executive Branch intelligence agencies to control the flow of information at trial.

COMMENTS

The Illinois Conveyances Act: A 200-Year-Old Labyrinth Whose Changing Walls Continue To Provide Inadequate Protection For Subsequent Purchasers

Cory Torgesen (695)

The Illinois Conveyances Act has been a muddled and marshy maze for nearly two centuries.  As written, it appears to be a pure notice statute.  However, courts have interpreted it as a race-notice statute.  The difference in classification has far-reaching consequences and should not be overlooked. Illinois Senate Bill 2953, instead of reestablishing the Act’s proper application, would transform it to a pure-race act.  Although the passing of Senate Bill 2953 may eliminate any confusion about the current discord between classifications, it would create worse problems.  Instead of Senate Bill 2953, the Illinois General Assembly should adopt an unmistakable pure-notice recording act and put an end to the discord that has persisted for nearly two centuries.

 Indecision: The Need To Reform the Reasonable Secrecy Precautions Requirement Under Trade Secret Law

Trygve Meade (717)

 CASENOTES

The Tortious Loss of Expectancies, a Lost Opportunity for Deterrence, and the Light at the End of the Tunnel, In Re Estate of Ellis, 923 N.E.2d 237 (Ill. 2008)

Jason L. Hortenstine (741)

Illinois currently recognizes tortious interference of an expectancy as a mere last recourse, not a separate cause of action.  In other words, before an individual may bring a claim for tortious interference with an expectancy in Illinois, there are two prerequisites: (1) all remedies via will contest must be exhausted; and (2) a will contest must be unable to provide the injured party with adequate relief.  As an unfortunate result, Illinois fails to provide an adequate deterrent against future tortfeasors, as a will contest cannot award punitive damages.  Recently, the Illinois Supreme Court first addressed whether the six-month statute of limitations for a will contest also applies to claims for tortious interference with an expectancy, so as to bar recovery to individuals who fail to take action within this statutory period.  The court established that the six-month statute of limitations does not apply when the victim does not have a fair opportunity to pursue a remedy through the probate court.  This Note examines the holding of In re Estate of Ellis.  Although the court ultimately came to the correct conclusion, the court failed to evaluate both conjunctive prerequisites to bring a tort claim.  Had the court addressed what constitutes “adequate relief,” the court could have established that tortious interference of an expectancy is no longer a last recourse, but a separate cause of action ensuring deterrence against future tortfeasors.

Exiting the Danger Zone: Clark v. Children’s Memorial Hospital, 955 N.E.2d 1065 (Ill. 2011)

Amy Friederich (765)

The zone-of-danger rule permits a plaintiff to recover damages for emotional distress when he can prove that he was either physically injured as a result of the defendant’s negligence or was in such close proximately to the defendant’s conduct (hence, the “danger zone”) that he could have been physically injured.  Illinois courts previously held that plaintiffs had no cause of action for emotional distress damages absent allegations and proof of intentional and outrageous conduct, or that the plaintiffs themselves were at high risk to injury during the incident, which resulted in their subsequent physical injury or illness by reason of emotional distress caused by the defendants’ negligence.

 In Clark v. Children’s Memorial Hospital, the Illinois Supreme Court declared that the zone-of-danger rule does not apply when plaintiffs can plead a separate tort action, such as wrongful birth, and show emotional distress as an element of the damages sought, rather than as a separate action for damages.  The court explained the difference between emotional distress as a free standing tort claim and emotional distress as an element of a separate tort claim.  So long as the plaintiff can claim a separate tort in addition to emotional distress, he no longer has to show he was physically injured or in the danger zone at the time of the defendant’s conduct.  This interpretation allowed for the plaintiff-parents in Clark to recover emotional distress damages as an element to their wrongful birth claim after their son was born with a genetic disorder.  However, the parents were unable to recover damages for the extraordinary expenses of caring for their disabled child after he reached the age of majority.  In Illinois, parents have no legal obligation to continue financial support of their children once the child turns eighteen, even if the child is disabled.  Denying the parents necessary additional expenses to care for their disabled son during his adult life violates public policy because it gives the parents an incentive to divorce per the Illinois Marriage and Dissolution of Marriage Act.  This Note discusses why the court erred in denying the parents extraordinary expenses to care for their son past age eighteen but correctly awarded the plaintiffs emotional distress damages.