Terrorism and Trial by Jury: The Vices and Virtues of British and American Criminal Law
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British tradition and the American Constitution guarantee trial by jury for serious crime.1 But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways.
First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence.
Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, juries may be sympathetic to those engaged in violence and may acquit the guilty. Alternatively, following a terrorist attack, juries may be biased. They may identify with the victims, or they may, consciously or unconsciously, seek to return a verdict that conforms to community sentiment. Jurors also may worry about becoming victims of future attacks.
Third, the presence of jurors may limit the type of information provided by the state. Where national security matters are involved, the government may not want to give ordinary citizens insight into the world of intelligence. Where deeply divisive political violence has been an issue for decades, the state may be concerned about the potential of jurors providing information to terrorist organizations.
These risks are not limited to the terrorist realm. Criminal syndicates, for instance, may try to intimidate juries into returning a verdict of not guilty, and public outrage often accompanies particularly heinous crimes. But the very reason why these other contexts give rise to a similar phenomenon is because terrorist crimes have certain characteristics-characteristics that may be reflected in other forms of crime, but which are, in many ways, at the heart of what it means for an act to be terrorist in nature: terrorist organizations are created precisely to coerce a population, or specific individuals, to accede to the group's demands. The challenge is political in nature, and the method of attack is chosen for maximum publicity. Terrorist organizations, moreover, can and often do use information about the state to guide their operations. It is in part because of these risks that the United Kingdom and United States have changed the rules governing terrorist trials-at times eliminating juries altogether.
This Article reflects on the relationship between terrorism and jury trial and explores the extent to which the three dangers identified can be mitigated within the criminal-trial framework.2 It does not provide a comprehensive analysis of the rich case law and literature that address jury trial-one of the most studied legal institutions on both sides of the Atlantic. Instead, its aim is more modest: The text weighs the advantages and disadvantages of suspending juries specifically for terrorism. Here, the United Kingdom's experiences prove illustrative. The Article considers the extent to which similar concerns bear on the U.S. domestic realm, and the decision to try Guantánamo Bay detainees by military tribunal. It suggests that the arguments for suspending juries in Northern Ireland are more persuasive than for taking similar steps in Great Britain or the United States.
This Article then considers ways to address concerns raised by terrorism that stop short of suspending juries. Juror selection, constraints placed on jurors, and the conduct of the trial itself provide the focus. Of these, emphasis on juror selection, although not unproblematic, proves most promising. Again, distinctions need to be drawn between the United Kingdom and the United States. In the former, for instance, occupational bars to jury service could be lowered, while in the latter, increased emphasis on change in venue may prove particularly effective. Changes in the second category, constraints on jurors, may be the most damaging to the states' counterterrorist programs. Finally, while changes in the trial process may help to address risks, they also may prove contentious and be prone to seeping into the criminal realm. The Article concludes by questioning whether and to what extent such alterations could be insulated from the prosecution of non-terrorist criminal offenses.
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U.S.-European Relations After the Iraq War
U.S.-European relations hit a dramatic and highly visible low point in the weeks leading up to the U.S. invasion of Iraq in March 2003. With the exception of the British government, which was, of course, supportive of the enterprise, many long-time U.S. allies – including, most prominently, France and Germany – were openly hostile to the American action. Relations have recovered, to a degree at least on an official level, but disagreements persist and resentments fester on both sides of the Atlantic four years after the onset of the war.
Is the damage that has been inflicted on the relationship irreparable in some sense? Or, as on so many other occasions since the establishment of the trans-Atlantic partnership at the mid-point of the last century, is the current unpleasantness likely to prove transitory? While the arrows point in both directions, the evidence continues to mount that the tensions so much in evidence between the two sides over the course of the last half-decade or so transcend disputes over particular issues. If this is true – which I believe it is – then our differences over Iraq are a reflection of something much deeper that is underway within the relationship, and not, in and of themselves, the cause – or even a cause – of the problem.
The real issue, it seems to me, is not whether relations between the United States and Europe can be repaired. Within limits, they can and will be. The more interesting – and important – question is whether the very nature of the relationship has changed (and is continuing to change) and if so, how, why, and with what implications for the future?
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Coit D. Blacker
Freeman Spogli Institute for International Studies
Stanford University
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cblacker@stanford.edu
Senior Fellow Emeritus at the Freeman Spogli Institute for International Studies
Olivier Nomellini Professor Emeritus in International Studies at the School of Humanities and Sciences
Coit Blacker is a senior fellow emeritus at the Freeman Spogli Institute for International Studies, the Olivier Nomellini Professor Emeritus in International Studies at the School of Humanities and Sciences, and a Bass University Fellow in Undergraduate Education. He served as director of FSI from 2003 to 2012. From 2005 to 2011, he was co-chair of the International Initiative of the Stanford Challenge, and from 2004 to 2007, served as a member of the Development Committee of the university's Board of Trustees.
During the first Clinton administration, Blacker served as special assistant to the president for National Security Affairs and senior director for Russian, Ukrainian and Eurasian affairs at the National Security Council (NSC). At the NSC, he oversaw the implementation of U.S. policy toward Russia and the New Independent States, while also serving as principal staff assistant to the president and the National Security Advisor on matters relating to the former Soviet Union.
Following his government service, Blacker returned to Stanford to resume his research and teaching. From 1998 to 2003, he also co-directed the Aspen Institute's U.S.-Russia Dialogue, which brought together prominent U.S. and Russian specialists on foreign and defense policy for discussion and review of critical issues in the bilateral relationship. He was a study group member of the U.S. Commission on National Security in the 21st Century (the Hart-Rudman Commission) throughout the commission's tenure.
In 2001, Blacker was the recipient of the Laurence and Naomi Carpenter Hoagland Prize for Undergraduate Teaching at Stanford.
Blacker holds an honorary doctorate from the Russian Academy of Sciences' Institute of Far Eastern Studies for his work on U.S.-Russian relations. He is a graduate of Occidental College (A.B., Political Science) and the Fletcher School of Law and Diplomacy (M.A., M.A.L.D., and Ph.D).
Blacker's association with Stanford began in 1977, when he was awarded a post-doctoral fellowship by the Arms Control and Disarmament Program, the precursor to the Center for International Security and Cooperation at FSI.
Faculty member at the Center for International Security and Cooperation
Faculty member at the Center on Democracy, Development, and the Rule of Law
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Heinz Gärtner
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Austrian Institute for International Affairs
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Imagining the Indian Nation: The Role of Literature in the Nationalist Movement: 1920-1947
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There was nothing inherently unified about the diverse cultures, religions and languages that comprised the Indian subcontinent under colonialism. The European model of nationalism, which took for granted the existence of one religion, one language or one ethnicity was doomed to failure. It was for this impossibility that the British argued that India was not fit to rule itself. It was on behalf of this sense of identity that, beginning in the nineteenth century, Indian writers of literature began to imagine cultural unity through their fictional and poetic works.
By the 1920s and 1930s, literature had come to occupy a central role in the Indian nationalist movement. Yet literary texts not only reflected the politics of Indias leaders (increasingly represented by the Indian National Congress,) but questioned some of their assumptions about the path India's future should take. For instance, the Hindi novelist Premchand set his stories primarily in rural India and satirized the machinations of the urban elite, emphasizing the rural-urban divide that was increasingly visible in mainstream nationalist politics. Likewise, the English-language author Mulk Raj Anand located his stories among the urban poor, disempowered not only by colonialism, but also by the kind of heavy industrialization supported by congress.
Authors affected by partition, such as Saadat Hasan Manto, painted a poignant picture of the injustices perpetrated on displaced families on both sides of the India-Pakistan border. Attention to the details and artistry of these and other fictional writings can add to our understanding of these hugely significant decades in sub-continental history.
Ulka Anjaria is a Ph.D. candidate in the Program of Modern Thought and Literature at Stanford University. Her dissertation, entitled "Novel Forms: Literary Realism and the Politics of Modernity in India, 1920-1947," discusses the works of Premchand, Mulk Raj Anand, Bibhutibhushan Bandyopadhyay, Raja Rao, Manik Bandopadhyay and Ahmed Ali, relating innovations these authors make on the novel form to larger political developments of the pre-Independence period. She has published articles in Sarai Reader and Economic and Political Weekly.
Ms. Anjaria's talk is the third seminar of the winter quarter South Asia Colloquium Series.
Ulka Anjaria
Ph.D. candidate, program of Modern Thought and Literature
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Stanford University
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The Ethical and the Political: Reflections on Peace and Non-Violence
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Uday Mehta is the Clarence Francis Professor in the Social Sciences at Amherst College. A political theorist, he has taught at Amherst since 2000, has a BA from Swarthmore College, and an MA and PhD from Princeton University. He received a fellowship from the Carnegie Corporation of New York in 2002. On this fellowship, he conducted case studies of minorities in India, South Africa, and Israel as they struggle for political and social recognition. His publications include The Anxiety of Freedom: Imagination and Individuality in Locke's Political Thought, published in 1992, and Liberalism and Empire: A Study in Nineteenth Century British Liberal Thought, published in 1999.
Sponsored by the Program on Global Justice, Stanford Humanities Center, Department of Political Science (Stanford Political Theory Workshop), and Center for International Security and Cooperation.
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Uday Mehta
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Amherst College
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The Wars on Three Fronts: Iraq, the Pentagon, and Main Street
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Drell Lecture Recording: NA
Drell Lecture Transcript:
Speaker's Biography: Thom Shanker is the national security and foreign policy correspondent for the New York Times. He joined the Times in 1997 and began covering the Pentagon in May 2001, four months before the terrorist attacks. Previously, Shanker was foreign editor of the Chicago Tribune. From 1992 to 1995, as the Tribune's senior European correspondent, based in Berlin, he covered the war in Bosnia-Herzegovina; the departure of American, British, French, and Russian forces from Berlin; and emerging cases of nuclear smuggling in Central Europe.
Shanker spent two years in the master's degree program at the Fletcher School of Law and Diplomacy at Tufts University, specializing in strategic studies and international law. He has written on foreign policy, military affairs, and the intelligence community for The New York Review of Books, The New Republic, and American Journalism Review.
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Thom Shanker
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The New York Times
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Explaining Suicide Terrorism: A Review Essay
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The current trend toward suicide bombings began in Lebanon in the early 1980s. The practice soon spread to civil conflicts in Sri Lanka, the Kurdish areas of Turkey, and Chechnya. Palestinian attacks on Israeli civilians in the 1990s and during the Al Aqsa intifada further highlighted the threat. Al Qaeda's adoption of the tactic brought a transnational dimension. Interest in the phenomenon then surged after the shock of the 2001 attacks, which involved an unprecedented number of both perpetrators and casualties. Since then, suicide bombings have expanded in number and geographical range, reaching extraordinary levels in the Iraq War and spreading around the world to countries such as Saudi Arabia, Morocco, Tunisia, Kenya, Indonesia, Turkey, Pakistan, India, Afghanistan, Egypt, Jordan, Bangladesh, and Britain.
This review covers thirteen of the books published on the subject since 2002. Three analyze the Palestinian case and four others focus on Islamist violence. The other six, including two edited collections, intend to be comprehensive. This review also refers to a few selected publications that discuss the arguments presented in the works reviewed. It aims to give readers a glimpse of the content of the different volumes as well as offer a critique.
The essay reviews these works:
- Mia Bloom, Dying to Kill: The Allure of Suicide Terror (New York: Columbia University Press, 2005).
- Joyce M. Davis, Martyrs: Innocence, Vengeance and Despair in the Middle East (New York: Palgrave Macmillan, 2003).
- Diego Gambetta, ed., Making Sense of Suicide Missions (New York: Oxford University Press, 2005).
- Mohammed M. Hafez, Manufacturing Human Bombs: The Making of Palestinian Suicide Bombers (Washington, D.C.: United States Institute of Peace Press, 2006).
- Raphael Israeli, Islamikaze: Manifestations of Islamic Martyrology (London: Frank Cass, 2003).
- Farhad Khosrokhavar, Suicide Bombers: Allah's New Martyrs, translated from the French by David Macey (London: Pluto Press, 2005).
- Anne Marie Oliver and Paul F. Steinberg, The Road to Martyrs' Square: A Journey into the World of the Suicide Bomber (New York: Oxford University Press, 2005).
- Robert A. Pape, Dying to Win: The Strategic Logic of Suicide Terrorism (New York: Random House, 2005).
- Ami Pedahzur, Suicide Terrorism (Cambridge: Polity Press, 2005).
- Ami Pedahzur, ed., Root Causes of Suicide Terrorism: The Globalization of Martyrdom (London and New York: Routledge, 2006).
- Christoph Reuter, My Life is a Weapon: A Modern History of Suicide Bombing, translated from the German by Helena Ragg-Kirkby (Princeton: Princeton University Press, 2004).
- Shaul Shay, The Shahids: Islam and Suicide Attacks (New Brunswick: Transaction Publishers, 2004).
- Barbara Victor, Army of Roses: Inside the World of Palestinian Women Suicide Bombers (Emmaus Pa.: Rodale [distributed by St. Martin's Press] 2003).
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Announcing the POSCO NGO Fellowship Program for 2007-2008
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The POSCO NGO Fellowship Program was established by POSCO TJ Park Foundation and Stanford University in collaboration with four other North American universities in September 2006 to provide the opportunity for key personnel of Korean non-government organizations (NGOs) to spend time at leading North American universities gaining knowledge and experience that will further the development of NGOs in Korea with generous support of POSCO TJ Foundation.
The fellowship program is supported by a consortium comprising Columbia University, George Washington University, Indiana University, Stanford University and the University of British Columbia. Each university hosts two fellows each year.
The selected fellows receive an annual stipend of $30,000.
Fellows are expected to:
- Undertake a research project and present a research paper at the annual conference;
- Participate in relevant university activities and conferences;
- Participate in university courses related to public service or NGO-related work;
- Network with other fellows and other NGOs .
Applicants for the 2007-2008 fellowship program should:
- Have no less than five years of work experience in NGOs;
- Be currently employed at any NGO that has existed for at least three years;
- Have sufficient language skills to be able both to perform a research project and
to communicate the findings in English.
Applicants should send a letter of interest, CV, research proposal, two reference letters, employment record, and certification of English ability (please download the application forms) by February 15, 2007 to:
NGO Fellowship Program Committee
Korean Studies Program
Shorenstein APARC
Stanford University
Encina Hall, E301
Stanford, CA 94305-6055
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CDDRL honors student wins Rhodes Scholarship
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Julie Veroff, a senior in the CDDRL Honors Program, has been named a Rhodes Scholar. She is one of 32 American men and women selected each year for this prestigious award, the oldest and best known for international study, which provides for two to three years of graduate study at the University of Oxford in England. Veroff plans to begin a M.Phil. program in development studies at Oxford next fall.
Veroff has done volunteer work on behalf of women's and refugees' rights in Nicaragua, Ghana, and Zambia through a United Nations partner organization focusing on refugee empowerment. At Stanford she is majoring in international relations, and will be working closely for the rest of this academic year with her advisor, CDDRL faculty affiliate James D. Fearon, on her honors thesis project, The Impact of Elections on Peace Durability and Quality of Democracy After Civil Wars. This fall Veroff had the opportunity to interview one of CDDRL's Stanford Summer Fellows in Democracy and Development, Luhiriri Byamungu, a human rights lawyer from the Democratic Republic of Congo.
The CDDRL Honors Program offers students majoring in International Relations the opportunity to conduct an independent research project focused on issues of democracy, development, and the rule of law under CDDRL faculty guidance. Such a project requires a high degree of initiative and dedication, significant amounts of time and energy, and demonstrated skills in research and writing. Honors students present a formal defense of their theses in mid-May of their senior year.
Students interested in the CDDRL Honors Program should consult with prospective honors advisers in their junior year and plan to submit their honors thesis proposal in the spring quarter of that year. Choosing courses that provide academic background in an applicant's area of inquiry and demonstrating an ability to conduct independent research are prerequisites for the program, as are a 3.5 grade-point average and strong overall academic record. Required coursework includes INTNL REL199, an honors research seminar that focuses on democracy, development, and the rule of law in developing countries.
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Government's new HIV screening guidelines influenced by CHP/PCOR research
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In late September, the federal Centers for Disease Control and Prevention announced new guidelines recommending that all Americans ages 13 to 64 be voluntarily screened for HIV infection. That's a significant change from the previous guidelines, which recommended testing only for high-risk individuals, such as injection drug users or those with multiple sex partners.
The new guidelines were influenced by a study published last year in the New England Journal of Medicine, led by Douglas K. Owens, a CHP/PCOR core faculty member and an investigator at the VA Palo Alto. Owens and his colleagues -- including CHP/PCOR researchers Gillian D. Sanders, Vandana Sundaram, Kristof Neukermans and Laura Lazzeroni -- found that expanding HIV screening would be a cost-effective way to increase life expectancy and decrease the transmission of HIV. Below, Owens discusses the research and the CDC's new screening guidelines.
Q. Why does this new policy matter, and whom will it help?
Owens: The policy is a profound change because it advises that all individuals ages 13 to 64 be screened for HIV. It matters because it will identify people who have HIV but don't know it. These people will benefit because they'll have access to life-prolonging drugs that they otherwise might not have received until very late in the course of HIV disease. The rest of the community will also benefit, through reduced transmission of HIV.
Q. How did your findings contribute to the CDC adopting the new guidelines?
Owens: First, we found that widespread screening provides a substantial health benefit to HIV-positive people who are identified through screening and receive anti-retroviral treatment earlier than they would have otherwise. Early treatment added about a year and a half of life expectancy for these people. Second, we found a substantial potential benefit to the community because of reduced transmission of HIV. Transmission is reduced because many people cut down on risky behaviors (such as having unprotected sex) when they're identified as having HIV, and because anti-retroviral treatment makes a person less infectious. Our key finding was that routine screening is cost-effective even if only 1 in 2,000 people who are screened have HIV. This means HIV screening is cost-effective in a much broader group than recognized previously.
Q. How and why did the CDC revise its previous guidelines? What role did you and your colleagues play in the decision-making?
Owens: CDC officials made this change because they saw mounting evidence that the prior approach to screening -- focusing on those with identifiable risk factors -- simply wasn't working. If you test people based on risk behavior, you miss many people who have HIV. Even among people who had easily identified risk behaviors, many of them weren't being tested. We also know that most people who have HIV are diagnosed very late in the disease, when they can't get the full benefit from anti-retroviral therapy.
Our involvement in the decision-making was to help assess the prevalence of HIV at which routine screening would be recommended. Through several conference calls with CDC officials, we presented our work and explained the issues related to cost-effectiveness and prevalence. Based on those results and the results of a similar study from Yale, the agency went in the direction of lowering the threshold for screening quite substantially -- to 1 in 1,000 from a prior threshold of 1 percent.
Q. Will most physicians follow the new guidelines? What can be done to make sure they do?
Owens: That's the big question. The CDC's previous screening guidelines were not widely adopted. The new recommendations are much easier to adopt, because they don't depend on clinicians determining the prevalence of HIV in their patient population. Still, it will take a lot of follow-up to make sure physicians implement the guidelines. One key obstacle will be getting payers to reimburse for HIV testing. That's a critical issue, which the CDC is well aware of.
Q. Some HIV/AIDS advocates object to the new guidelines because they recommend removing two requirements that some states now have: mandatory signed consent forms and counseling before testing. Does removing these requirements pose a big problem?
Owens: It's important to emphasize that the new guidelines say people should always be informed before testing and should be able to decline. Informed consent and pretest counseling had become significant barriers that were preventing people from being tested who should have been tested. Everyone agrees that no one should be tested without their knowledge, but that doesn't mean you need a separate consent form. Of course, the confidentiality of the test results should continue to be carefully protected. I would point out that some states have laws requiring informed consent, but whether they will now change those laws isn't clear.
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