I’ve posted a draft version of my article Institutional Legitimacy and Counterterrorism Trials to SSRN and SelectedWorks. The article is forthcoming in the Richmond Law Review and addresses the relationship between conformity and legitimacy in the institutional design process. I specifically address how legitimacy is an important factor for counterterrorism trials, the military commissions and national security courts. The article is aimed at national security law scholars and institutional design theorists. Here is the abstract:
Much of the current debate in national security law scholarship focuses on institutional design issues related to the balancing of values such as legitimacy, effectiveness, fairness and efficiency. A part of that debate centers around the legitimacy of tribunals established to try alleged terrorists. Critics of those tribunals assert they are an illegitimate form of justice and require reform or replacement by a new national security court. These scholars are principally engaged in a debate over institutional design. This article seeks to contribute to that debate, and also to the larger institutional design literature by providing a theoretical framework for understanding and evaluating legitimacy considerations in the institutional design process. While adding legitimacy as an analytical component may further complicate an already complex legal and policy debate, I contend that the benefits to be derived from maximizing legitimacy are too important to neglect.
The analytical framework outlined in this article provides a conformity based model for evaluating the legitimacy of an institution. This framework is useful for sensitizing institutional designers and legal scholars to notions of legitimacy which are derived from the pressure for conformity placed on institutions by external observers. That conformity pressure can force organizations to comply with formal and informal external mandates, overcome uncertainty by copying existing and legitimate forms, and conform with the prevailing norms in a professionalized field. Institutional designers should factor into their proposed reforms an explicit consideration of the value organizations can derive from legitimacy based conformity.
This article also sensitizes scholars to the fact that while an institution may achieve legitimacy, it may do so by adopting an inefficient form. The discussion thus highlights that an institutional innovation such as a national security court may effectively achieve certain goals associated with counterterrorism, but may nevertheless fail to achieve an optimal level of legitimacy. On balance this may be an acceptable legal and policy outcome, however scholars should explicitly recognize the legitimacy tradeoff which is at play in their proposals.
The article concludes by suggesting that because a national security court will, by its nature depart from the structure and practice of an Article III court, national security court proponents must sensitize themselves to the challenge of balancing conformity based legitimacy with effectiveness and efficiency. Thus, the best approach for the institutional design process may be to narrowly and selectively modify the existing legitimate institutional form present in Article III courts, rather than taking a bottom up approach which creates new institutions from scratch. Because the simultaneous maximization of effectiveness and legitimacy is unlikely, scholars and institutional designers should highlight the tradeoffs in their design proposals and account for what factors they’ve elevated over others, noting whether their design poses the risk of criticism on the grounds of suboptimal legitimacy or suboptimal effectiveness.
Cross Posted at LawandTerrorism.com