In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue.
The war in Afghanistan, presenting a host of thorny legal issues, is now the longest war in United States history. This means that the federal courts have never endured wartime conditions for so long. As a result of this prolonged martial influence, it is clear that this war is corroding federal court jurisprudence. My research represents a first attempt at synthesizing what impact the war in general, and terror trials in particular, have had upon the federal courts. I argue that the hypothetical fear of “seepage” has become concrete. Indeed, judges already admit that the war has taken a regrettable toll on courts’ opinions.
In a trend that should alarm both tribunal proponents and detractors alike, tribunals and criminal trials are gradually growing to resemble one another. While efforts to improve the military tribunal system have enjoyed a fair level of success, long-entrenched Article III standards are deteriorating at a pace that mirrors the pace of tribunals’ improvements. A cluster of recent cases, proposed bills, and regulatory actions have narrowed the gap between Article III courts and military tribunals considerably. When viewed as a whole, these blurred lines between the military and domestic spheres draw the federal courts into disquieting congruity with the tribunal system.
I argue that these decisions and bills have altered (1) habeas jurisprudence, (2) detention policy, and (3) criminal investigatory procedure. More specifically, I contend that, as a result of a decade of federal courts accommodating the government’s campaign against terror, the criminal justice system is beginning to resemble the very military tribunals that were once the antithesis of Article III courts. In Part II, I discuss how the federal judiciary’s perspective on habeas corpus review has shifted dramatically even since the beginning of the global war on terror. In Part III, I argue that recent court decisions and administrative agency actions have created an Article III-sanctioned indefinite detention system that is almost indistinguishable from Guantánamo Bay. In Part IV, I observe that courts have relaxed their threshold evidentiary requirements to a point that is strikingly similar to those of military tribunals. In short, courts are becoming military commissions that convict.