11 Jul Goldsmith and Katyal Propose a “National Security Court”
In today’s New York Times, Jack Goldsmith and Neal Katyal have an interesting op-ed proposing that Congress create a special Article III “national security” court that would oversee a comprehensive system of preventive detention.
Nearly six years after 9/11, the government’s system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts.
The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.
Such a court would have a number of practical advantages over the current system. It would operate with a Congressionally approved definition of the enemy. It would reduce the burden on ordinary civilian courts. It would handle classified evidence in a sensible way. It would permit the judges to specialize and to assess over time the trustworthiness of the government and defense lawyers who appear regularly before them. Such a court, explicitly sanctioned by Congress, would have greater legitimacy than our current patchwork system, both in the United States and abroad.
Criminal prosecutions should still take place where they can. But they are not always feasible. Some alleged terrorists have not committed overt crimes and can be tried only on a conspiracy theory that comes close to criminalizing group membership. In addition, the evidence against a particular detainee may be too difficult to present in open civilian court without compromising intelligence sources and methods. And the standards of proof for evidence collected in Afghanistan might not meet every jot and tittle of American criminal law.
A Congressionally sanctioned system of preventive detention, which would supplement the criminal process, is far from unprecedented. The Supreme Court has recognized that the president can detain traditional enemy combatants during wartime. The court has also long approved preventive detention for people who are dangerous to society — the insane, child molesters, people with infectious diseases, and the like — but who have not committed crimes.
Congress should draw the national security court’s judges from a pool of current federal judges, the same process used for the special court we already have to issue intelligence warrants. The court would have a permanent staff of elite defense lawyers with special security clearances as part of its permanent staff. Defense lawyers trained in the nuances of taking apart interrogation statements, particularly translated statements, are crucial because often the legal proceedings will involve little else in the way of evidence.
Congress should require the national security court to make sure that there is a continuing rationale to detain people years after their initial cases were heard. Congress should also insist on rights of appeal for detainees, ensuring scrupulous review by a second layer of specialized, repeat judges who will keep the initial judges on their toes. And consistent with the values enshrined in the Constitution’s equal protection clause, Congress should insist that the same rules apply to citizen and non-citizen terrorist detainees.
Detainees, however, need not be given the full panoply of criminal protections. A detainee may not be able to meet his lawyer right away, particularly if interrogation has just begun. A terrorist captured in Afghanistan should not be able to seek release because he was not read his Miranda rights. A national security court, while it would operate in public, would not have the same public and press access as an ordinary criminal trial.
We already have specialized federal courts to deal with matters like bankruptcy, taxes and patents; the case here is far more compelling. In the past, Americans might have hoped that a national security threat would abate over time, and so the pressures on the civilian courts, whatever they were, would subside. Today we have no such luxury. We must create sensible institutions for the long haul.
My primary question for Jack and Neal is whether they view this as supplanting military commissions or complementing them. They don’t really say. It appears from the op-ed that the advantages they outline are primarily by comparison to traditional civilian federal courts. But they don’t discuss whether an Article III national security court would have distinct advantages over military commissions.
I would think that a national security court would be particularly useful for those cases that fall outside the jurisdiction of military commissions. But I’m not sure if they are also suggesting that all detainees, including ones that fall squarely within the jurisdiction of the military commissions, be prosecuted by a federal national security court.
I just noticed that Amos Guiora over at National Security Advisors has a post about a recent article he has written proposing amending FISA to create a federal “Terror Court”. Sounds similar to what Goldsmith and Katyal are proposing.
My question: would the proposal comport with international law (and related but perhaps not the same: would the Europeans go along with it)?
Well, coming from a decidedly European, human rightsy perspective, I see maybe three separate sets of problems. The first is the institutional make-up of these national security courts – will they provide sufficient guarantees of due process, fairness, impartiality etc. If they do, if the judges are chosen in a transparent, as non-partisan way as possible, there is no reason of principle under human rights law why these courts could not be established by Congress. There certainly are ample grounds for doing so, mainly due to the very specific and complex issues in fact-finding and collecting and assessing evidence. Specialized courts in some European countries exist for similar reasons in matters such as organized crime or war crimes, so why not terrorism? The second set of issues relates to the differences in procedural and substantive law between these specialized courts and regular civilian courts. There would again be little or no problems under human rights law to have bench trials instead of jury trials, to limit the hearsay rule or the exclusionary rule, as long as sufficient fair-trial guarantees exist. But when it comes to detention and to my knowledge of international and European case-law, a regime of preventative detention,… Read more »
What a sad day! I am amazed! Law professors who are preventive detention advocates! A National Security Court! Have things gone this far in this country that people are really mulling seriously the merits of a preventive detention regime? Is the hysteria this crazy? I would ask all people of goodwill to take a quick look through the various cases that the federal courts have dismissed on state secret, federal officer immunity, political question etc doctrines where people held in detention have complained of “HORRENDOUS” treatment and the courts have shown absolutely no interest in exploring those claims. I would ask you to look at the “standing” decision of the Court of Appeals in the ACLU vs. NSA case and recognize that, once an issue is presented in this environment in a national security context, if one complains the courts does not want to hear you as those fearful of having lost rights are not considered sufficiently harmed. All of those decisions have been done by eminent federal judges and the necklace of decisions from the perspective of vindication of basic rules of international law or constitutional law (as the lower court did in the case of ACLU vs. NSA… Read more »
A US Coast Guard Academy law professor’s proposal along the same lines from a JURIST column a year ago is here
short description
Scott Horton writing for Harpers has the exact opposite reaction from Ben Davis. He writes: [Goldsmith and Kaytal’s] proposal is likely to be viewed as anathema to civil libertarians. But that would be foolish. Nations around the world have maintained the essential features of a liberal democratic society while keeping a regime of preventive, or investigatory detention. Indeed, this has long been the norm in civil-law regimes, and the greater skepticism of the common-law countries has never been absolute. America has been something of a proud outlier on the issue. The focus in the coming national debate should be on the evidentiary showing based upon which preventive detention can be ordered (let’s take it as a given that it should not be available on the executive’s whim for other than the briefest period, particularly considering the massive abuse that has been demonstrated over the last six years, but on the other side the cumbersome U.S. criminal justice rules on evidence would not apply), and the maximum term available. This is where the debate has focused in Britain’s House of Lords for the last four years, for instance. And on the continent, what is to us so controversial, has never been… Read more »
I hestitate to add my two cents in such esteemed company. Nevertheless, I feel compelled to say that the law of war recognizes preventive detention for both combatants and non-combatants. What Katyal and Goldsmith propose is a much better alternative to the detention regimes under GC’s III and IV. If you read closely, they expect specially qualified defense counsel (hence actual representation – as opposed to what is happening on CSRTs or would happen in Art. 5 or internment tribunals). They expect a full vetting of the evidence and its source. I also get the impression that they did in fact intend this to apply to anyone who would be held without trial in a military commission – regardless of the location of capture. I hasten to add that they would need the court to either issue domestic “arrest” warrants or provide review of detention without a warrant. My concern here is that detentions must be reviewed for sufficiency as soon as possible – even if ex parte – and again in after initial intelligence exploitation in the presence of counsel for the detainee at a minimum (sort of a preliminary hearing). My real concern with relating this to mental… Read more »
I have to agree with John D. and add two points. First, as regards to Marko’s point, preventive detention is recognized under international law. We call it being a POW. What is being a POW other than preventive detention. The U.S. is well within its rights to hold these people until there is an end to the hostilities, Europe elite sentiment notwithstanding. It can’t torture them, it has to let the Red Cross visit them, but it sure as hell can hold them.
Second, I am not sure that “letting the chips fall where they may” is the best theory for dealing with terrorists. Of course, I am not French so what do I know.
See:
http://www.gutenberg.org/etext/7849
“letting the chips fall where they may” is a reference to who juries find guilty or innocent in the prosecutions I propose as part of my seven point plan, not for dealing with terrorists. I guess you have had to have friends who were considered enemies of the state in places like Chile or like my late godfather held in preventive detention after a coup in Liberia or read “The Man Died” by Wole Soyinka and met him about his detention in Nigeria during the Biafran War. That encourages a certain skepticism about the consequences of centralization of power even in a National Security Court. I did live in France for a while during the time of several terrorist bombings in the streets of Paris. I have a friend who survived a bombing in the Prefecture de Police in Paris and other friends children who just missed being on a train that exploded in a terrorist attack in Paris. The National Security Court is part of an overall very intrusive state there that has its advantages but also has its disadvantages. One is willing in Paris to give over more freedom (or maybe have a different kind of freedom) because… Read more »
John D. and NewStream Dream, The whole point of having a national security court is that the Global War on Terror does NOT fit well withing the armed conflict paradigm. If you ask me, or the ICRC for that matter, it’s not legally an armed conflict at all, save for Iraq and Afghanistan, in the same basic way that the Cold War, the greatest struggle between two powers in human history, was legally not an armed conflict. The problem with the Bush administration strategy has never been with people who took up arms in Iraq or Afghanistan and are being detained until those conflicts end. The problem is with the Al-Marris and Padillas of this world, whose situation bears little or no resemblance to an armed conflict, but whom the US government wishes to detain indefinitely without trial or any judicial review and coercively interrogate, and therefore declares them to be ‘unlawful combatants’, persons having no rights whatsoever. Preventive detention, or interment in armed conflicts has a completely different history and purpose, as it presupposes a recognition of equality between the parties, and the legitimacy of a combatant of the opposing party participating in hostilities. So, having a national security… Read more »
Bravo Mr. Davis!!! When I hear about black holes and extraordinary rendition only one thing comes to mind : Forced Disappearence.
I also think that it is people like you who might revert the soild image this administration has covered on the image of the American people.
Thank you and bravo!!!
But I’m not sure if they are also suggesting that all detainees, including ones that fall squarely within the jurisdiction of the military commissions, be prosecuted by a federal national security court. For my part, I am not sure Goldsmith and Katyal are talking about prosecutions at all. I would have thought they were proposing a more formalised version of the indefinite detention of terrorist suspects, with a National Security Court (an unhappy name, if I ever heard one) designed to supervise the detentions (either by issuing necessary warrants, or by reviewing internment orders issued by the Executive). If they are, this would remind me very strongly of British law, as it was until early 2005. The Home Secretary then had a power to order the indefinite internment of people who were suspected of terrorist activities, and who could not be returned to their home countries because they stood a real risk of being tortured there (that prohibition following from Article 3 ECHR – Chahal v. United Kingdom). The British version of the National Security Court was the Special Immigration Appeals Commission (SIAC), which would first automatically review the internment order, and then reexamine the situation of the internee in… Read more »
A second, unrelated point: Goldsmith and Katyal say that there should be a right of appeal to ‘a second layer of specialized, repeat judges’. I assume there would be no right of appeal beyond that. Why? I can understand why the judges at first instance should be able to specialize in the handling of the very sensitive issues involved, and particularly in the taking of privileged (classified) evidence. I can also see why the judges on appeal should have similar experience if there is an appeal on fact (i.e. if such an appeal is permissible). But I utterly fail to see why judges hearing an appeal on points of law should be from such a select(ed) group. In other words, I can see no good reasons against allowing an appeal to the ordinary superior civilian courts, including the Supreme Court. That, after all, is how it worked in the UK. The internees could appeal from SIAC to the Court of Appeal of England and Wales, and thence to the House of Lords. This was used, and none of the three judges in the Court of Appeal, or of the nine judges in the House, had any form of specialization in… Read more »
Be sure to check out Ken Anderson’s take on the Goldsmith/Katyal proposal, available here.
More on a tangent, but same logical path to “National Security Courts”: http://www.workingforchange.com/comic.cfm?itemid=18427 We somehow got through the Revolutionary War, the Civil War, two World Wars, the Cold War, etc. etc. without this nonsense. Granted there were slip-ups here and there in the courts, and times when the rules were broken, but we usually ended up regretting those in time (interment camps, anyone?). Now we are actually proposing an alternative system just because it is somewhat less disgustingly awful than the complete nonsense going on now again detainees/suspects/people we just target and kill (along with whoever happens to be standing around) all over the world. This court idea is based on similar logic to Dersh’s “Torture Warrants”, another horrible, un-American idea (i.e. let’s vaguely legalize what should be completely criminal because we’ll do it anyway or because I’m scared). Take a step back, people. We get caught up in legal arguments over what is ultimately a fundamental choice — do we actually stop this incredibly un-American torture/alternate system/etc. nonsense or do we let it go on (even in a watered down way)? We have courts, we have law enforcement, we have ways to stop potential terrorists. When we change everything… Read more »
Marko,
Couldn’t the U.S. treat them as POWs if it wanted to, and then hold them until the end of the hostilities? Isn’t that what everyone wanted to see happen when Gitmo first opened? Where does it say that a terrorist cannot be a POW? Wouldn’t that be a consistent with international law?
In some weird way, I agree with Thanatos, let’s use the old paradigm of POW status to our advantage. Why create a new paradigm of enemy combatants. Do what the world has been demanding, declare these people POWs and hold them until the end of the conflict. Game, set, match.
How many Germans captured at the Battle of the Bulge got civilian trials? None. They were released when the hostilities were ended. Why treat Al-Qaida any differently?
First, I would like to clarify that I did not suggest that the law of armed conflict paradigm was proper, only that it was far less preferable to what was proposed by Goldsmith and Katyal. In fact, I do not agree with SCOTUS in Hamdan on the applicability of Common Article 3 to AQ in Afghanistan (which is not to say that I don’t believe there is relevant international law on this situation). Second, it is clear to me that this is a system for preventive detention, not prosecution. To suggest otherwise is to ignore the specifics of the proposal. They clearly recognize this is for folks who cannot be criminally prosecuted for evidentiary or security reasons. Third, thank you for the point to Anderson’s take on this Roger. I do not share his admiration for Casey and Rivkin. Although they raise good points, as far as they go, Casey and Rivken take their usual approach of setting up a few unenviable alternatives of the many available and knocking them down. They do not directly address Goldsmith and Katyal’s idea. (For full disclosure, I freely admit a disdain for Casey and Rivkin op-eds in general.) Fourth, having been involved in… Read more »
I didn’t mean to suggest that the proposed system would suffer from the same flaws as regards discrimination as the British legislation. In fact, I meant to suggest that some form of regime of indefinite detention could well hold up under international human rights law, provided that it is implemented in a technically correct manner – which the UK Parliament failed to do, on a point that is very easily avoided.
Of course, some issues remain, which the House of Lords was presumably happy to be able to avoid, such as the question whether the indefinite detention is strictly required by the exigencies of the situation.
John D.
“having been involved in criminal cases involving classified material”
May I ask what was your role in such cases – prosecution, defense, judge, expert, witness, other?.
Best,
Ben
Ben,
For what I hope are obvious reasons, I prefer not to discuss that comment further in this forum or over the internet. It was probably a mistake for me to mention it.
Best,
John D.
No problem. It is just that it seems to me obviously relevant to being able to know where you are coming from on this.
Here is a piece that just came out on the New Security Court over at JURIST at short description
Let’s just call this proposal, “The Court of the Stars and Stripes Chamber.”
Very funny. I think “The Court of the Stars &Bars Chamber” would be even a hair better…