Volume 109 Issue 4 Dickinson Law Review - Volume 109, 2004-2005 3-1-2005 Miscarriages of Justice in the War Against Terror Kent Roach Gary Trotter Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Kent Roach & Gary Trotter, Miscarriages of Justice in the War Against Terror, 109 DICK. L. REV. 967 (2005). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol109/iss4/6 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. Miscarriages of Justice in the War Against Terror Kent Roach and Gary Trotter* I. Introduction Although much has been written since the September 11 terrorist attacks about how far states should go in combating terrorism, much less has been written about the risks of harming the innocent in the war against terror. Indeed, the very metaphor of a war against terror suggests a willingness to accept some collateral damage.' Reduction of the freedom of citizens is typically cited as the most common form of collateral damage, and much of the debate about anti-terrorism measures has revolved around threats to civil liberties. 2 In this paper, we will begin to examine how various anti-terrorism measures taken in a number of countries may increase the risk of another type of collateral damage- miscarriages of justice. In addition, we will explore the significance of the war against terror for what is classified as a miscarriage of justice. In particular, recent American anti-terrorism efforts-such as the detention of enemy combatants at Guantanamo Bay, the use of detention under immigration laws, the detention of people under material witness * Of the Faculties of Law, University of Toronto and Queens University (Kingston) respectively. This paper is part of a larger and on-going comparative study of miscarriages of justice. The financial assistance of Canada's Social Sciences and Humanities Research Council is gratefully acknowledged. Thanks also to Rayner Thwaites for excellent comments on an earlier draft of this article, as well as the participants in Russ Weaver's Criminal Procedure Forum held in Louisville in November, 2004, and the University of Minnesota's Law School seminar series in January, 2005. As this article was being completed, Professor Dianne Martin, who was a pioneer in Canada for the study of and advocacy against wrongful convictions, unexpectedly passed away. Her death leaves a large hole and we respectfully dedicate this article to her memory. 1. For an epidemiological study estimating close to 100,000 additional deaths in post-invasion Iraq, see Les Roberts et al., Mortality Before and After the 2003 Invasion of Iraq: Cluster Sample Survey, LANCET, Oct. 29, 2004, at http://image.thelancet.com/ extras/04art I0342web.pdf. 2. See, e.g., the creation of a Privacy and Civil Liberties Oversight Board in § 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 §§ 7211-14 (2004). PENN STATE LAW REVIEW [Vol. 109:4 warrants, and the designation of American citizens as enemy combatants-raise the issue of whether the conceptualization of miscarriages of justice as the wrongful criminal conviction of the factually innocent is too narrow. That is, should deprivations of liberty short of the criminal conviction of those who are innocent under the relevant law be classified and studied as miscarriages of justice? Can concerns about the punishment of the innocent be applied to immigration and military laws that employ detention as a preventive measure? How does the context of the war on terrorism inform the debate about what is a miscarriage of justice and the efforts that are necessary to minimize the risk of miscarriages of justice? The British experience with wrongful convictions in the Birmingham Six, the Maguire Seven, the Guildford Four and the Judith Ward cases provides dramatic evidence about the danger of convicting the innocent as a response to terrible acts of terrorism. Wrongful convictions in all cases are corrosive to the integrity of the justice system, but they are particularly corrosive in terrorism cases. As in the so-called Irish cases in the United Kingdom, miscarriages of justice may be taken as a partial affirmation of some of the political or other grievances of the terrorists. This is particularly so if democracies that claim to abide by the rule of law and equal rights and justice for all do not live up to these ideals when they are threatened by terrorism. The temptation of departing from normal legal standards and engaging in pre- judgment, prejudice, and stereotyping may be particularly high in emotive and devastating cases involving allegations of terrorism and fears of continued acts of terrorism. The need to maintain legal standards of fair treatment and to ensure the just and accurate determination of individual responsibility are particularly important if democracies are to maintain the high ground in their fight against terrorists. The punishment of the guilty, and only the guilty, is one of the important distinctions between the force that a democracy should use to defend itself against terrorists and the force that terrorists themselves use. 3 In addition, the risk of wrongful convictions in terrorism cases, both before and after 9/11, are likely to fall disproportionately on particular groups, such as racial and religious minorities, or those with radical political views. Thus, even if you accept 3. Section 102(a)(3) of the USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272, 276 (2001), includes a finding of Congress that "the concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial and ethnic groups." On the sometimes fine distinctions between terrorism and counterterrorism, see Laura Donohue, Terrorism and Counterterrorist Discourse, in GLOBAL ANTI-TERRORISM LAW AND POLICY (V. Ramraj, M. Hor & K. Roach eds. (forthcoming)). 2005] MISCARRIAGES OF JUSTICE IN THE WAR AGAINST TERROR 969 that the risk of wrongful convictions can never be reduced to zero, there may be a special case4 for taking additional precautions to reduce this risk in terrorism cases. In the first part of this paper, we review the experience of wrongful convictions in terrorism cases, with special attention to the so-called Irish cases of the Birmingham Six, the Maguire Seven, the Guildford Four, and Judith Ward, who were all wrongfully convicted of IRA bombings. These cases provide evidence of the many pressures that may be brought to bear on the criminal justice system in high profile and emotive terrorism cases. For example, they demonstrate how police misconduct can generate false confessions and false evidence that is used against others thought to be connected with a terrorist cell. They reveal the effect that tunnel vision can have on those who prosecute terrorism cases, including supposedly objective forensic scientists, judges, and juries. These cases also reveal how a common factor in wrongful convictions- the failure of the state to make full disclosures of information to the accused-can be a special risk in complex terrorism cases where the state is reluctant to disclose information that may affect national security. We also examine how broad criminal laws relating to terrorism, including new post 9/11 anti-terrorism criminal laws, executive designation of terrorists and terrorist groups, and reliance on circumstantial evidence may encourage a process of guilt by association that may run the risk of convicting the factually innocent. We conclude that the above factors, as well as the pressure to reassure the public after a terrible act of terrorism, generate real risks that factually innocent people, especially innocent associates of terrorists, may be charged and perhaps wrongfully convicted of terrorism. As in the Irish cases, such wrongful convictions, if eventually discovered, will shake the public's confidence in the criminal justice system and be seen as an affirmation of state discrimination against those who may share political beliefs, national or ethnic origins, and/or the same religion as the terrorists. Despite the above risks of wrongful convictions in terrorism cases, we are not able to point to specific examples of confirmed or suspected wrongful convictions since the terrorist attacks of September 11, 2001. In Germany and the United States, prosecutions of those alleged to have participated in the September 11 plot have been thwarted or stalled because of an unwillingness to disclose intelligence sources to the accused. Lack of full disclosure was a significant cause of wrongful convictions in the Irish cases, and insistence on disclosure is an important safeguard against future wrongful convictions. At the same 4. RONALD DwoRKN, A MATTER OF PRINCIPLE 88 (1985); Ronald Dworkin, The Threat to Patriotism.NEW YORK REV. OF BOOKS. Feb. 28. 2002. PENN STATE LAW REVIEW [Vol. 109:4 time, the due process requirements of the criminal trial have placed considerable pressure on many states to use less restrained alternatives to the criminal law. The less restrained alternatives include the use of military power, immigration laws, and other laws that are not designed to punish the guilty.5 In the second part of this paper, we will examine some of these alternatives to criminal prosecutions to determine whether concerns about miscarriages