The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law

In Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military commissions that had been proposed by the Executive to prosecute a small number of detainees captured in the 'war on terror' could not proceed. In response to the Hamdan decision, Congress enacted a new military commission structure in the 2006 Military Commissions Act (MCA), which President Bush signed on October 17, 2006. The MCA establishes military commissions for aliens classified as unlawful enemy combatants. It lists the crimes chargeable by such commissions. The MCA also amends domestic legislation - for example, the War Crimes Act - initially enacted to implement the Geneva Conventions for U.S. officials. This Article explores triangulation among the Hamdan ruling, international criminal law, and the Geneva Conventions. My concerns are substantive as well as operational. In particular, I unpack: (1) Hamdan's substantive contribution to international criminal law; and (2) the operational value of prosecution and punishment by military commission as a mechanism to enforce Common Article 3 of the Geneva Conventions. Little thought has been given to the goal or purpose of punishing convicted terrorists. We have not assessed what we actually hope to achieve by punishing. Is it deterrence? Retribution? Incapacitation? Reintegration and reconciliation? To restitute those harmed? Or is the goal of punishment something more communicative and pedagogical - namely, what I call expressivism - to augment the moral value of law, stigmatize those who break it, and establish an authoritative public, and transnational, narrative regarding the heinousness of terrorist violence? We only can properly assess the role of prosecution and punishment as an enforcement mechanism of the Geneva Conventions if we first identify what, exactly, we hope to achieve by punishing breaches thereof. Based on my analysis of perpetrators of atrocity in other contexts, I develop an argument that the most plausible - although quite fragile - justification for punishing convicted terrorists, in this case al-Qaeda terrorists connected to the September 11 attacks in the United States and other wide-scale attacks against civilians, is the expressive justification. Accordingly, it makes sense to structure process and punishment in a manner conducive to obtaining this goal. I argue that the 2006 MCA, although better able to facilitate expressive penological goals than the commissions that had been struck down in Hamdan, still remains deficient in important regards. I also explore the broader question whether the Geneva Conventions, in particular Common Article 3 thereof, should apply to conflict against non-state actor terrorist groups. I develop a response that, for a variety of expressive reasons, there is value in having them apply, although care must be taken not to overestimate this value.