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, even if it is conducted under judicial review, cannot be used to detain people for years on end. A month of detention without criminal charges, two or three – that might withstand international scrutiny – but several years of preventive detention? That smacks too much of Guantanamo to me.
The third set of problems is one in which I have little or no expertise – can this special regime fit within the existing US constitutional framework? Unlike in many other countries, the US Constitution does not foresee a generic possibility of a state of emergency, in which it would be possible to derogate from certain otherwise applicable rights. I know that such possibilities do exist under US Supreme Court case-law, but my feeling is that the Bush administration chose the war paradigm for fighting terrorism precisely because it was the one assured way in which it could escape from the constraints of that nasty Bill of Rights. I simply don’t know whether there would be room for some middle-ground as US constitutional law currently stands.
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 but the Appeals Court did not) is terribly troubling. And with the decisions that appear to be shifting against the “little guy” in this term of the Supreme Court I as one am terribly concerned that ultimate appellate review will not be better.
Might I suggest that this is a further iteration from the Presidential Military Order, through the CSRT’s and MCA’s, through centralizing in the DC Court of Appeal, now into a fourth mutation to keep moving the ball on what we are doing. It is like an intoxication with improvisation.
Might I suggest that this idea be dismissed immediately. Might I suggest we do the hard work of getting back on track first. First, might I suggest that we hold the detainees that we have in accordance with our constitutional and international law obligations as traditionally understood for at least the past 60 years. Second, might I suggest that we close the black sites – permanently. Third, might I suggest that we end the extraordinary renditions for torture – permanently. Fourth, might I suggest that we close Guantanamo and place detainees in places similar to what we did stateside during World War II. Fifth, might I suggest that we not place people in black holes – ever and wherever. Sixth, might I suggest we comply with Geneva Conventions and other international law when we interrogate people. Seventh, might I suggest that to show the world we mean business we criminally prosecute in U.S. domestic courts our high-level civilians and generals who put in place this improvised horrendous system that is both unlawful and causing us this much damage.
If we did those first seven things, I think we would go a long way towards rehabilitating America’s reputation in the world which is the most serious obstacle to our being able to confront what is a dangerous enemy. Of course, people who went along to get along with these practices in and out of government will be made to look bad by such an effort – but we might focus more on what is good for America than the personal reputations of those who have led us down this primrose path to perdition.
Beyond that, might I suggest that we scrap the Military Commissions Act of 2006 and related legislation that in my estimation reflects a thinly veiled attempt at amnesty of those who put in place the horrendous system. Might I suggest we step away from the effort to reinterpret international law obligations in domestic law to create a separate regime that does not really comply with international obligations. I hope you remember the testimony in Congress in favor of the Military Commission Act of 2006 where it was suggested that terms such as “outrages against personal dignity” in Common Article 3 were considered too vague. Might I suggest we turn away from these types of discussions and recognize the true intent was to receive permission to treat people we do not like in a horrendous manner. Might I suggest that we reject those who push that type of argument through playing on our fear – permanently.
Might I suggest that we have a reasonable review of the status of persons of concern to determine whether they are POW’s, security detainees, or civilians. Rather than a special court, if we do not trust the discretion of our leaders, might I suggest that Congress frame clearer language as to when people are to be released in the event that the “cessation of hostilities” type standard is considered too difficult to apply in a “War on Terrorism” of indeterminate scope and duration.
Might I suggest that a national security court is really another phrase for what is called in French – un tribunal d’exception – a term that is heavy with connotations of star chamber justice. One of the great things about state courts of general jurisdiction or federal courts of limited jurisdiction is that they are open to everyone and have to operate in the light of day. Adjustments have to be made and can be made for given cases. We might spend more money on more courts to allow us to have the sufficient number of judges around to do the hard work of their role – but I would hesitate to create such an exceptional court, with exceptional rules, and exceptional powers, that will overtime not be the exception.
Given the rarety of refusals of warrants in our experience with the FISA court that we have had over the past 6 year period, I am deeply concerned that a similar experience would happen with such a national security court.
Maybe Jack Goldsmith and Neal Katyal are just too young to remember the kind of horrendous domestic activities of the CIA and others as described only partially in the recent “Family Jewels” release. But I and many Americans are not. I can remember persons denied even the most basic right to travel through the denial of a passport to Richard Wright for the most spurious of reasons. Who would be a security risk? Would Rosa Parks? How about Ramsey Clark? How about Martin Luther King? How about Stokely Carmichael? How about Malcolm X? How about any person whoever stood up and protested the security state? I think it is incredibly naïve to think that such a national security court could be kept in a limited role.
I am not at all warmed by the appeal to American values for we all know that is a dual edged sword. We have seen under the guise of American values efforts to maintain enshrine and enhance what could only be called domestic state terrorism against blacks in the South for so much of our history. We have seen a Senate that would not take up an anti-lynching law for so many years while people were lynched. We have seen waits of 40 years for persons to receive criminal prosecution of people who killed their brothers for expressing themselves during the civil rights movement, due to the unwillingness of state or federal prosecutors to do anything. In my lifetime, I have seen enough of the ebb and flow of American values on the issue of integration of blacks into society to understand that those values are not so stabilized and protective as such appeals would like to make us think.
So please kill this idea immediately. Do the hard work of fixing the security state in the ways it has run off the rails. That hard work will earn the respect and credibility. Not another improvisation or cosmetic window dressing – I and many Americans I suspect are fatigued by these legal games. And let the chips fall where they may.
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:
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 health or other forms of preventive detention is, at what point can one determine whether someone is NO LONGER a threat to the U.S.? They can either feign moderation of their views in order to rejoin the fight OR feign continued hostility to achieve martyr status while receiving free food and medical care until their natural deaths. I am just not sure that there is a practical way to determine at what point someone should be released.
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 of French history. But, even with that, there are memories of Algerian men floating down the Seine river after a police riot in Paris in the time of the Algerian War that are not spoken about – are part of what is left unsaid.
We are not the Germans either with their painful history of the Nazi era that weighs heavily on most of them.
Given the disastrous improvisations for the past six years in this area, I find the willingness to place trust in some new gadget called a National Security Court just baffling even if Goldsmith, Katyal and Horton seem to want to start a discussion exploring it.
Whatever happened to the healthy skepticism about centralized power? Have you read the facts as alleged in Boumedienne as to what happened to him? Read how the judge nevertheless is perfectly willing to dismiss the case. Is there nothing that can happen that will lead a federal judge to step passed these doctrines? It seems there is nothing. Is that vision of judicial restraint one that will balance seriously the protection of liberty in the face of alleged security threats.
Maybe the proposal should call it the National Civil Liberty Court so that we would sense the Orwellian nature of the entity being thought about.
Does anyone seriously believe that this magic court would be willing to give up all those doctrines that other federal courts have been using to insulate the state from its abuses? Having seen the drafting of various security legislation such as the USA Patriot Act and the Military Commmissions Act, does anyone think that what would come out of Congress would seriously protect civil liberties? Both political branches have the fundamental fear of being accused of not having done something and a terrorist event happening. They are structurallys oriented to devise a system that will emphasize security over liberty. Look at the FISA system and the effort to essentially eliminate any judicial discretion on granting the warrants sought.
And the courts are so reticent to use the judicial power that I do not expect much openness to liberty in them. When we get to the Supreme Court, given the Louisiana case where Thomas was willing to allow prison guards to torture prisoners and the steady move to the right this term, doesn’t even a little fear of authoritarian centralized power creep into your hearts?
It is so hard for me to explain these concerns in a way that convinces, I know. Yet, I know in my bones that this is such a bad idea as it is in the form of another “quick fix” idea that does not address more underlying issues of how we really are confronting this threat. With such a new court, we would have to learn to live with this new structure and run through the kind of hiccups that we are seeing going on with these newfangled Military Commissions on such a basic issue as to whether they have jurisdiction over the person being charged.
Democracy has disorder. Freedom has some risk. Life is not a manicured garden. I am 51 so maybe I should take solace that I might be dead before this thing would be up and running. What a sad day!
Best,
Ben
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 court which would be able to authorize preventive detention for a limited amount of time OUTSIDE THE SITUATION OF WAR poses no problems of principle as a matter of international law. Whether it’s a wise policy is a different thing. There is, however, simply no way in which that preventive detention could last for years on end.
In Europe, it is only pre-trial detention which can last that much, but even then only if there are good reasons for that being so, for instance because the preparation of the case is extremely complicated. So, one way out of this is mess is to make, if you didn’t already, the mere participation in a terrorist group to be a crime, and prosecute them for that crime before a court which fulfills international and US requirements of due process. Fine by me. The problem again is that the Bush administration wishes to detain people on the flimsiest of evidence, such as the Pakistani government or the former Northern Alliance say-so.
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!!!
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 regular intervals.
This legislation was based, in human rights terms, on a derogation from Article 5 ECHR (the right to liberty) under Article 15 of the Convention (derogation in war or in an emergency threatening the life of the nation), as well as a statutory instrument under the Human Rights Act 1998 (HRA) giving domestic effect to the international derogation.
The human rights obligations are fundamentally the same for the US, there under the ICCPR.
The House of Lords decided that this derogation was invalid, quashed the statutory instrument, and declared the internment regime incompatible with the ECHR and the HRA: A and Others v. Secretary of State for the Home Department (No. 1) [2004] UKHL 56, [2005] 2 AC 68.
But this was not on the most general grounds imaginable; indeed, the House did not deny the possibility of a regime of indefinite detention per se (although Lord Hoffmann and Lord Scott of Foscote made particularly vitriolic comments on it: paras. 95-97, 155). Moreover, the House accepted that the threat posed by Al Qaeda qualified as an emergency in the sense of Article 15 ECHR (Lord Hoffmann dissenting: paras. 95-97).
The problem with the British legislation was more limited: the power to indefinitely detain applied only to foreign nationals. This was a discrimination unjustified by the facts, and therefore a violation of Article 14 (non-discrimination) read with Article 5 ECHR, from which there had been no derogation. Accordingly, the derogation failed to comply with the UK’s obligations outside of Article 5 ECHR (taken alone), and was thus invalid.
[Parliament quickly replaced this statutory regime with a system of control orders, which cannot (for the time being) deprive anyone of their liberty. It could have simply extended the previous scheme of indefinite detention to UK nationals, but that had become politically impossible (not least because the judgment of the House had been misreported).]
Far be it from me to advocate indefinite detention in any form, but this does seem to be rather preferable to the current regime at Gitmo etc.
At any rate, the UK experience may not show what ought to be done, but it does show how good internationalists go about constructing proper authority for indefinite detention.
Is it perhaps slightly ironic for Jack Goldsmith to go down that route now?
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 national security matters. I am not aware that any problems have arisen from this.
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 we are about, the terrorists win. Are we so scared/whipped now we’ll let our fear tear us down?
A National Security Court preventively detaining people for things they might want to do in the future, and with less than normal legal protections no less… think back to high school civics and about how stupid and un-American an idea like that would have sounded.
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 criminal cases involving classified material, I do not completely share Ben’s fear of secret proceedings. Fully capable and zealous defense counsel can sign non-disclosure agreeemnts and effectively represent their clients. The only thing that must be allowed is that these counsel have access to the highest and most sensitive levels of classified material in order to fully and fairly challenge the evidence. That is what I believe is being proposed. I question whether it would ever be truly accepted and implemented. There are numerous allegations and reports that intellignece agencies won’t even share some of their information with each other…let alone defense counsel.
Fifth, thanks for sharing Tobias. Your insights were truly enlightening. However, I do not see the system propsed as suffering from the discrimination problem that you mention in the British system. There is no mention of discriminating based on either the nationality of the individual involved – or for that matter the location of capture. In fact, I meant to earlier suggest that such discrimination should be avoided – except for the timing of the initial review of detention.
Fifth, Thantos, though I understand your concern and agree with you on Dersh’s suggestion, I do not see “intellignece exploitation” or “national security courts” as a pseudonym for “torture”. This is something the adversarial system proposed will help avoid by fully vetting the evidence and releasing those being held on coerced, unreliable evidence. What American values require is sufficient due process to deprive suspected terrorists of their liberty. I believe the proposal meets the requirement, so long as there are the controls I mentioned earlier and automatic periodic review of each case. That being said, I still do not see a practical way to determine the point of safe release (and hence, agree with Marko on this point). That is probably where this plan ultimately fails in my humble opinion.
Finally, Thantos, I am afraid we got through the early conflicts you mentioned without this nonsense because there was even LESS due process before those involved in the functional equivalent of terrorist acts were executed. I could be wrong on this.
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…