From Jack Goldsmith's 2011/1
Hoover Digest piece on fixing the "abundant dysfunctions in our system for incapacitating terrorists" -
There is no silver bullet for this mess, but a few pragmatic steps can bring progress toward resolution.
First, give up on closing the Guantánamo Bay facility. ... the substitute for detention without trial at the island prison is detention without trial inside the United States, with little if any change in legal rights. The main reason to close the facility is to fulfill a first-week presidential pledge that now, under different circumstances, is too costly.
Second, acknowledge that military detention will remain the primary basis for holding terrorists, and strengthen the system. ... The main legal foundation for targeting and detention in places such as Pakistan, Somalia, and Yemen is the September 2001 congressional authorization to deal with the 9/11 attacks. But as dangerous terrorists have ever-dimmer connections to September 11, the government is bumping up against the limits of what this authorization permits.
Third, stop using military commissions, which are a good idea in theory but have for nine years proved unworkable in practice. Military detention and civilian trials provide adequate legal bases for terrorist incapacitation.
Fourth, separate the legitimacy of civilian trials from the security of such trials. Much of the opposition to trying Muhammad in a New York civilian court was the potential for massive disruption in securing the downtown venue. Objections to civilian trials diminish if they are moved to more-remote places in the New York and Virginia districts where the crimes occurred.
Fifth, do not seek the death penalty at trial. Many alleged terrorists plead guilty. Most of the hard legal and political problems in trials—including the use of classified information and coerced confessions—arise in the penalty phase, when defendants can seek and introduce any conceivably probative evidence. Many problems with terrorist trials go away if we simply deny terrorists their sought-after martyrdom
'The Kafka-esque Case of Sheikh Mansour Leghaei: The Denial of the International Human Right to a Fair Hearing in National Security Assessments and Migration Proceedings in Australia' (Sydney Law School Research Paper No. 10/111) by Ben Saul - forthcoming in the
UNSW Law Journal -
examines the near-total denial of fair hearing rights under Australian law to non-permanent resident, non-citizens whom the national authorities suspect are national security risks to Australia, closely analysing of the case of Dr Sheikh Mansour Leghaei, an Iranian national expelled from Australia in June 2010. It argues, first, that the statutory elimination of procedural fairness rights violates the international human right to a fair hearing in the expulsion of aliens under the International Covenant on Civil & Political Rights (ICCPR). Affected persons and their legal representatives are denied any effective opportunity to see and test the essential allegations and evidence grounding an adverse security assessment. Administrative review tribunals and federal courts are also precluded from any substantive role in testing the reliability of evidence. Whether the person is indeed a risk to national security cannot be rationally determined. Secondly, this article concludes that denying fair hearing rights to non-permanent resident, non-citizens amounts to unjustifiable discrimination on the basis of 'national origin' or 'other status' (temporary migrant status), breaching the ICCPR's non-discrimination and equal protection guarantees. Thirdly, it finds that an affected person's expulsion from Australia without a fair hearing may violate family rights under the ICCPR and children's rights under the Convention on the Rights of the Child 1989.
Saul comments that -
The article firstly concludes that the statutory elimination of procedural fairness rights under Australian security and migration laws (specifically, under the Australian Security Intelligence Organisation Act 1979 (Cth) and the Migration Act 1958 (Cth) violates the international human right to a fair hearing in the expulsion of aliens under article 13 of the International Covenant on Civil & Political Rights 1966. Specifically, fair hearing rights are violated because an affected person is unable to enjoy any effective opportunity to see and test the essential allegations and evidence upon which an adverse security assessment is based. Further, unlike in Britain or Canada, no special procedures exist to enable an affected person's legal representatives to access or test the allegations or evidence, while administrative review tribunals and the federal courts are also precluded from any substantive role in testing the reliability of evidence on the merits.
Where an affected person is thus deprived of equality of arms in legal proceedings, it also cannot be rationally determined whether the person is indeed a risk to national security, or whether such decision is arbitrary or based on unreliable or inaccurate information. There is, in sum, a near-complete denial of the international right to a fair hearing, which puts Australian practice at odds with the more nuanced approach to balancing individual rights and security imperatives in comparable liberal democracies such as Britain and in Europe.
This article secondly concludes that the denial of fair hearing rights to non-permanent resident, non-citizens, in contrast to the fuller rights accorded to citizens or permanent residents in the security assessment process, amounts to unjustifiable discrimination on the basis of "national origin" or "other status" (that is, temporary migrant status), contrary to the non-discrimination and equal protection guarantees in articles 2 and 26 of the ICCPR. Australia has not adequately justified such differentiation in fair hearing rights, since national origin or migration status is not a characteristic that is materially relevant to the security risk posed by a person.
Where an affected person is expelled from Australia on the basis of an adverse security assessment process which does not accord a fair hearing, in individual cases there may also result violations of protected family rights under articles 14, 23 and 24 of the ICCPR and of children‟s rights under the Convention on the Rights of the Child 1989. The case of Dr Leghaei, for example, involved the forcible separation of family members where it remained unknown whether Dr Leghaei was, in fact, a security risk, and therefore it could not be established whether the separation of family members could be justified on national security grounds.
