Chicago's Best Ideas with Professor Aziz Huq: Forum Choice for Terrorist Suspects
What forum should be employed to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the President as to whether the status of terrorism suspects should be determined via Article III criminal process or military commissions have revived debate on this venue question. These disputes have yielded highly controversial provisions in a recent National Defense Authorization Act that might be read to force such adjudications into an exclusive military forum. The problem of forum choice is typically framed as a simple matter of law. This assumes statutory and doctrinal rules furnish, or can furnish, dispositive guidance for sorting suspects between civilian and military venues.
But doctrine provides an insufficient analytic lens for understanding venue selection. Rather, the choice of forum question can more profitably be understood as a problem of institutional design. A key institutional design decision that to date has been ignored is whether or when to create jurisdictional redundancy: When, that is, should the fact of overlapping jurisdictions vest the government with a choice of forums or an option to retry a suspect acquitted in an initial process? Such redundancy is currently pervasive. But conventional wisdom suggests that it both risks abuse and is needlessly costly. The conventional wisdom is incorrect. Jurisdictional redundancy has complex direct and indirect effects on the accuracy and cost of terrorism-related adjudication. It influences error rates, system maintenance costs, externalities, information production, and incentives. Consideration of redundancy effects undermines the appeal of leading reform proposals from both the left and right of the political spectrum.