13 Jul Sulmasy on National Security Courts
With the recent interest in the Goldsmith and Katyal op-ed calling for a National Security Court, I just wanted to point out (as Ben Davis did in the comments to the previous post) a piece written last year by Glenn Sulmasy, a law professor at the U.S. Coast Guard Academy, calling for just such a court. He has also written a recent follow-up taking into account the Goldsmith/Katyal op-ed.
In his essay from last year, Sulmasy wrote:
In cooperation and concert with an updated Foreign Intelligence Surveillance Act (FISA), a national security court apparatus needs to be statutorily created. The detainee issue will not be resolved soon, nor will the Global War on Terror end in the foreseeable future. Policy makers must achieve both the reality and appearance of justice for the short and long term. Clearly, many issues need to be hammered out in regards to court composition. The current thrust should simply be to inject new ideas into the national debate over the proper handling of detainees. In that vein, I humbly offer fundamental guidelines for a National Security Court:
1. Article I judges with law of armed conflict expertise. The courts would be led by judges, appointed by the President, who are experts in the law of armed conflict and have some background in national security law. These Article I judges should possess the educational background necessary to determine the lawfulness of intelligence gathering, terrorist surveillance, etc. Several scholars, advocating against judicial intervention in the war, correctly note that those who are making such decisions now are not necessarily versed in this unique area of the law. Whether you agree or disagree, the nature of this war seems to necessitate judicial intervention more than has been customary, in previous U. S. military operations and wartime. As it stands now, the existing systems (the FISA court and Article III federal courts) permit judges who have no background in warfare or national security to intervene, conduct hearings and decide on cases and issue warrants. Unfortunately, such actions are beyond the scope of their scholarship or expertise. The complex threat we now face demands specialty courts staffed by appropriate personnel.
2. Prosecutors – Five dedicated prosecutors, assigned by the Department of Justice (DoJ) would represent the government and exercise prosecutorial discretion on whether or not to proceed in cases. Oversight would be conducted by the Chief, Criminal Division of DoJ. The powers of these prosecutors, as currently exists in other democratic, E.U. nations, would be great. However, these prosecutors would still operate under the ethical rules standard for all US government attorneys.
3. Specified and Qualified Defense Counsel(s) – Judge advocates would serve as the government-provided defense counsel. This group would be similar to what has been provided for the detainees in the military commissions. The judge advocates would be assigned from the Department of Homeland Security and the Department of Defense. Initially, a pool of ten judge advocates would serve on the defense teams. As an option, the jihadist could employ, at his own expense, civilian counsel so long as such counsel have requisite classified document clearance(s).
4. Trials Proceedings would be closed – As a result of the sensitive nature of intelligence gathering and specialized methods employed – as well as ensuring such hearings do not become propaganda tools for the enemy – the trials would be closed to the public. One need look no further than the World Trade Center bombings in 1993 and the recent Moussaoui case to see the heightened need for such hearings to be closed to the media and public audiences. However, qualified representatives from designated NGO’s and the United Nations would be permitted to attend as “observers” to ensure trial fairness and witness the procedural protections expected of a nation dedicated to upholding the rule of law.
5. Trials Held on Military Bases within the Continental U. S. – This would keep the detainees held in a location that is secure, like Gitmo, but located within the United States on one of our military bases. This would, in part, alleviate some of the international concerns about the detention centers located in Gitmo. Since Eisentrager has been essentially overruled by recent cases, the extraterritoriality needs are no longer applicable and, in essence, are moot.
6. Convicted Defendants Imprisoned at Military Brigs – If convicted and sentenced to jail time, military brigs are by far and away not only the best but also the right place to imprison those convicted by the National Security Courts. This is the most secure place to imprison such illegal combatants and affords the same protection against abuse given to those U. S. service members who are tried, convicted and sentenced under the UCMJ by courts-martial.
7. Appropriate Appellate Rights – Consistent with the theme of the National Security Courts being a military-civil hybrid, appeals would go through the Courts of Appeals of the Armed Forces (CAAF). This limited right of appeal would ensure these cases were heard by an outside panel of judges versed in military law and the laws of war, as well as have some background in the procedural nuances of national security law. Appellate counsel would be provided by experienced Air Force, Coast Guard, Navy-Marine Corps, and Army appellate attorneys.
8. Death Penalty – The death penalty would still be an authorized punishment as it currently still is under certain UCMJ offenses (and the commissions) a possibility for convicted military members. This penalty would only be authorized in those cases deemed egrigous enough and ones that severely impact the homeland security of the United States. Certain aggravating factors would have to be codified to distinguish between what offenses are appropriate for life sentence or those better suited to capital punishment. Cognizant this would still cause concern among our European and certain other international colleagues, this proposal must undergo intense scrutiny prior to implementation.
[I ommitted the footnotes; please see the original for citations]
This is a different formulation than Goldsmith/Katyal (who, for example, would use Article III judges) but, with folks with views as varied as Scott Horton and Ken Anderson (who has also been speaking in favor of such a court for the last year or so) interested in exploring the idea of a national security court (not to mention Goldsmith and Katyal themselves), I think those saying that this may be a moment of real bipartisan dialogue are correct.
But, of course, the devil will be in the details.
Thanks for posting his pieces here.
Please note that my op-ed written before Commander Sulmasy’s latest JURIST piece is also available at short description.
Maybe the folks overlooked that.
Given how all this is coming together, is it just me or are others feeling a full court press being put in place to try to build momentum and sell us on this bad idea? A full court press similar to that full court press before the Military Commissions Act last year. And a full court press similar to the one to sell the starting of the War in Iraq back in 2002 and 2003. I hope you all do not sell your souls – again.
Best,
Ben
I think this discussion is very different than what happened before the MCA. In that instance, neocons were upset over the Supreme Court’s decision and (following the Court’s own holding) enlisted Congress so that what had been unconstitutional as a unilateral Executive action would be consituional as joint action by Congress and the Executive. Here, though, we see an attempt to move back from using military commissions into some sort of regulated court system: a move that I, for one, applaud. This time we find both Democrats and Republicans mulling through what such a court could look like. And, yes, Ben, like I said the devil will be in the details. If a national security court was just the MCA with robes, then I would be against it. But if it is an opportunity to be more protective of civil liberties, have real appellate review, and be mindful of secrecy/security needs, then I think it is worth exploring. It will be a tough balance to make, but I think we are currently in an untenable situation. What I take these various op-eds and commentaries to really mean is that both sides of the aisle are willing to at least talk… Read more »
A highly specialized court, convened under untrammelled executive authority (at least in this proposal), not open to public scrutiny, that tries crimes pertaining to “national security.” I think I’ve heard of those before — weren’t they called the Star Chamber? If we get to use the fruits of coercive interrogation techniques as evidence in this new court the comparison becomes even more apt.
I especially liked Scott Horton’s line from the Harper’s piece Professor Alford posted:
“Of course, the English-speaking world has had some very unpleasant experiences with national security courts.”
Indeed.
And none of these proposals speak about any limitations on the court’s jurisdiction or its life. Are these courts only going to be used for “jihadists” or will there be inevitable creep for the court to try other terrorist crimes. Maybe eventually we can finally get around that pesky Article III, Section 3 treason requirement by just labeling people terrorists who can go before the national security court with a far lower evidentiary standard.
Chris and others, I fear you do not get it. If you check out Commander Sulmasy’s website at the US Coast Guard Academy you will see that he spent or is spending a year at Boalt Law School (UC Berkeley) in 2007 where our famous friend John Yoo is teaching. Now, of course, you may say “but so what?” I hope you will also notice that he and John Yoo are publishing an article together in the UCLA Law Review any day now on “Rational Choice and the War on Terrorism”. Now, of course, John Yoo is famous from the beginning of all these horrendous things that have been done – from the first meetings post-9/11 (and the still classified list of interrogation techniques, remember?). Post-Hamdan, much like the MCA drafting process to avoid liability in light of Hamdan, the National Security Court I suspect is again about changing the subject and not focusing on the horrendous things done the past 6 years. In fact, Commander Sulmasy works hard in his piece to assure us all that he has no problem with what has happened over the past 6 years. A National Security Court covers a great deal more ground… Read more »
David Glazier over at the National Security Advisors law blog has some thoughtful but highly critical comments about the Goldsmith/Katyal proposal and the Sulmasy proposal. Check it out here.
Let me start by saying that I am not a fan of the reputation or history of this or other executive administrations or our intelligence agencies. Much of the concern here and in Glazier’s blog relates to the potential for abuse. Of course, that problem exists in any and every court system used for any purpose…whether its proceedings are public or private. So rather than focus on how imperfect this will be – as if anything is – maybe we should chat about the benefits that could come from this. First, the judges must be Art. III appointees for a term certain (to keep them from “going native” with the intelligence agencies) – not this civil-military hybrid system. The military needs to be out of this business in my humble opinion. That said, let us not fool ourselves into believing that this insulates the judges from pressure or coercion from the executive. Who grants their security clearance? Who can revoke it, or threaten to, for real or concocted reasons? To practically implement this, perhaps eventually some of the security clearance procedures in regard to the judiciary and defense counsel will be pulled out from under the exclusive control of the… Read more »
I hear you but please let us not remake the wheel trying to solve one problem by creating a disastrous other problem. Please look at this section of General Comment 13 of the Human Rights Committee of experts kindly sent on the ASIL Forum by Andre Hoogh of the Netherlands. I know “UN – OOO!” but these are words that ring absolutely true to me from my personal experience. The covenant is the International Covenant on Civil and Political Rights. Here it is. “Dear members, Article 14 of the Covenant does not rule out special courts. In this sense HRC, General Comment 13, para. 4: ” 4. The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless… Read more »
“I think this discussion is very different than what happened before the MCA.” Don’t kid yourself Chris: it’s eactly the same situation. They lost the Hamdan decision and responded with the MCA. They are about to lose in Al Odah and Boumedienne, and the impulse here is exactly the same: to salvage the criminalk policies of the Bush administration. Why on earth Neal Katyal or Scott Horton would even consider this is beyond me except that maybe they’re tired and thinking that a political compromise is in order. Personally, I think the idea is just more of the smae silly dishonesty that I’ve been fighting against since I first read the PMO on 11/13/2001. Thw only REAL problems here are the unwillingness of of the Bush administration and the Republican Party to OBEY THE LAW, their contempt for the Article III Courts, and their on-going efforts to subvert both. They have been lying about this stuff from the start, and all their arguments amount to is a CONFESSION of their own utter incompetence and dishonesty. According to them, they only way they can “win” their idiotic war on nothing and everything is to cheat and behave like Nazis. These people… Read more »