15 May Guiora on National Security Courts (UPDATED)
Amos Guiora has a link at National Security Advisors for his new article of domestic terror courts. He writes in his abstract:
President Barack Obama has stated that among his initial priorities as commander-in-chief is closing the United States detention facility in Guantanamo Bay. One of his first actions after taking office was to suspend all legal proceedings in Guantanamo so that “the newly inaugurated president and his administration [can] review the military commission’s process, generally, and the cases currently pending before military commissions, specifically.” To that end, on January 22, 2009, President Obama signed an executive order requiring the closure of the Guantanamo Bay detention facility within one year. This Order raises numerous, highly problematic questions including: What do we do with the current detainees? Where will they go? How will they be tried? Will they be tried? What shall be done with future terrorism suspects?Although President Obama has made his intentions clear, he has not, as of yet – according to media reports – determined what is the most effective manner to go forth with this enormously complex issue. Therefore, now is clearly the time to develop a working strategy to resolve the fundamental questions of where and how thousands of post-9/11 detainees are tried. For the reasons articulated below, I recommend establishing a domestic terror court (DTC) in the United States.
This article will detail the specific processes and procedures of such a court and seek to answer many of these difficult questions. In doing so, it is my hope that this article will act as a “guide” for policy makers in articulating, developing, and implementing a process from detention to trial of individuals suspected of involvement in terrorism. A lawful civilian process, subject to independent judicial review, is the constitutional, intellectual, and philosophical underpinning of this proposal. In detailing the nuts and bolts of the proposed DTC. Though I will briefly address why the DTC proposal should be adopted, the primary emphasis in this article is to fill in the blanks as to the workings of the court.
When the national security court idea was first being bandied around about two years ago, I was in favor of at least hearing-out the arguments. With time, I have become more and more skeptical of proposals for such courts. However, I have always found Guiora’s scholarship to be particularly thought-provoking and so I look forward to reading this new article…
UPDATE: And then there’s this announcement about the restart of the military commissions…
I look forward to reading it too. Guiora writes very interesting and smart stuff, even when I’m not ultimately persuaded. On a side note related to Guiora’s scholarship – it’s true of a couple of other scholars I whose work I admire and read closely, such as Gabriella Blum – I’ve gradually come to be less persuaded than I used to be that Israel’s actual legal procedures for addressing terror/counterterrorism offer so much of an example for how the US should proceed. There are many reasons why the situations are not as similar as they appear to be. The geography of the conflict – one confined to densely packed, tiny sliver of the world, and the other ranging across continents and oceans. The size of the populations, the intertwining of the social interactions between contending territorial groups and their respective group solidarities, the universality of military experience in Israel, and the special role of the Israeli Supreme Court in Israeli society – all of that make me think that Israel’s institutional responses to counterterrorism through legal institutions are very particular to it and, although somewhat useful for helping think through US issues, not very directly applicable. This affects,… Read more »
Going forward, I’m sure a national security court of some type will be adopted. But how does that fix the mess that we’ve kept thousands of detainees in for the last several years?
No third class processes for foreigners – whether in the revamped military commissions (Obama commissions) which are in violation of Common Article 3 or in a newfangled national security court. Courts or courts-martial.
Best,
Ben
The distinctions with the Israeli situation are very important and I am glad that you are there. Context for comparative law analysis is extremely important. For example, I asked a South Korean professor about “aniticipatory self-defense” back in the major discussions about that and he pointed out that the North is 30 miles from Seoul. So there could be things in the North that happened that might not rise to the level of a clear armed attack but that have enough of the attributes that would trigger Article 51 self-defense. I could not dismiss that point out of hand as it seemed to have merit in law and common sense. At the same time, something happening 7 000 miles away might not trigger Article 51 and require a UN Security Council action. Guiora I hope addresses Judge Robertson’s summer 2008 opinion denying a stay of Hamdan’s Military Commission. Judge Robertson puts us right back to Chambers v. Florida (1938 I believe) and the treatment of a black murder defendant by the Florida police and the Florida court – another kangaroo court setting that comes from a painful history on the mainland. There to, all were driven by that inchoate fear… Read more »