From Means to End: Efficiency and the Quest for Legitimacy in the U.S. Military and Civilian Terrorism Trials
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This article evaluates whether efficiency-enhancing measures in U.S. terrorism prosecutions strengthen or undermine institutional legitimacy. Using an input–throughput–output framework, this study compares two fora—Guantánamo military commissions and Article III civilian courts—across indicators of due process, procedural integrity, timeliness, finality, and social acceptance. These concepts are operationalized and tested through emblematic cases, including the 9/11 proceedings before the commissions and the Moussaoui and Elsheikh trials in federal courts. The analysis finds that efficiency is not legitimacy-neutral: when procedural shortcuts erode due process or transparency, they backfire, generating longer timelines, greater error risks, and reduced acceptance. Civilian courts, equipped with the Classified Information Procedures Act (CIPA) and robust exclusion rules, produce outcomes that are both more legitimate and more efficient. Policy recommendations follow for forum design, with implications both within and beyond the U.S.
Abstract
This article evaluates whether efficiency-enhancing measures in U.S. terrorism prosecutions strengthen or undermine institutional legitimacy. Using an input–throughput–output framework, this study compares two fora—Guantánamo military commissions and Article III civilian courts—across indicators of due process, procedural integrity, timeliness, finality, and social acceptance. These concepts are operationalized and tested through emblematic cases, including the 9/11 proceedings before the commissions and the Moussaoui and Elsheikh trials in federal courts. The analysis finds that efficiency is not legitimacy-neutral: when procedural shortcuts erode due process or transparency, they backfire, generating longer timelines, greater error risks, and reduced acceptance. Civilian courts, equipped with the Classified Information Procedures Act (CIPA) and robust exclusion rules, produce outcomes that are both more legitimate and more efficient. Policy recommendations follow for forum design, with implications both within and beyond the U.S.