After 9/11, Stephen Schulhofer, Robert B. McKay Professor of Law, wondered how rules for international electronic surveillance differed from those governing domestic investigations and how the military commissions set up to try detainees at Guantanamo would contrast with conventional courts. A traditional scholar of U.S. criminal law (“My work had been about U.S. law, within domestic boundaries,” he says), Schulhofer followed his curiosity in a new direction that included military and international law. Beginning with a detailed exegesis of the Patriot Act that heavily informed his 2002 book The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11, he inched his way into the field of Law and Security.
Schulhofer’s examination of the Uniform Code of Military Justice, the Geneva Conventions, and related protocols spurred him to rethink the strengths and weaknesses of the U.S. court system in trying accused terrorists. He concluded that the same Article Three courts that hear cases involving alleged gangsters and securities-fraud artists have proven themselves quite capable of handling international conspiracies. Although classified intelligence complicates the matter, he says, “if the courts can deal with taking down the mob, they can deal with terrorism.” In Guantánamo and Beyond: What to Do about Detentions, Trials, and the ‘Global War’ Paradigm, published earlier this year, Schulhofer offers the Obama administration a road map for reasserting the primacy of conventional courts and military courts martial over special military commissions. “Sometimes, despite the complexity of a problem, the simplest solution is best,” he contends. By employing existing laws such as the Classified Information Procedures Act, federal judges can allow the government to protect secrets even while allowing for an accountable and largely public trial process. To support this view, Schulhofer interviewed dozens of prosecutors, defenders, and judges from the major international terrorism trials in New York in the 1990s. These trials resulted in long prison terms for nearly all of the defendants and no significant exposure of classified intelligence.
Schulhofer and University Professor Tom Tyler are now collaborating on a large empirical study of the impact of counterterrorism investigations on Muslim communities in Brooklyn and East London. Funded by the National Science Foundation, the research involves hundreds of interviews to determine how surveillance, enforcement, and community-relations policies shape Muslim attitudes toward cooperating with authorities in identifying dangerous individuals. “We want to see which mixture of policies encourages compliance with the law and assistance to the police,” says Schulhofer. The answer could point toward a wiser balance of security and civil liberties.