What happens if, in 2015, all American troops are brought home, the political class announces that the war is over, and the ACLU and CAIR start screaming that the laws of war no longer support indefinite detention? If that argument gains traction, and I think it will, our choice will be to release the worst terrorists or try them. Obviously, that’s really not a choice at all: If our only way of keeping them on ice is to have trials, then that is what we will do. But by then, the trials will be much more difficult. Years will have elapsed, witness memories will have faded, leads will long have grown stale. And yet, because al-Qaeda will still be a threat, the same downsides to civilian prosecution that exist today will still exist.
There is a better answer, and it is one the Obama administration and a more Republican, more national-security-conscious Congress can accomplish. We can finally stop talking past each other and create a national-security court system that melds the best elements of military and civilian justice.
We can protect classified information, streamline charges, lower admissibility-of-evidence standards, and endow terrorists with rights that are fair (in the sense of insuring the integrity of trial results) but that do not equal the constitutional rights of American citizens. Simultaneously, we can tap the experience and professionalism of our accomplished federal judges while our similarly talented Justice Department prosecutors work side by side with top military prosecutors.
Civilian judges could be assigned to the new court by the chief justice, just as the Foreign Intelligence Surveillance Court is now staffed. To prevent judges from inflating due-process protections, as they have liberty to do in the civilian system, Congress can prescribe exacting rules. Lawmakers can include a direction that terrorist defendants are not entitled to any rights, privileges, or protections not explicitly spelled out in the legislation. Government prosecutors can be given the power to appeal instantly if a trial judge suppresses evidence, dismisses counts, or tries to grant accused terrorists benefits beyond what Congress has enacted.
We could get pending and future terrorism cases done. We could get them out of our civilian justice system, so that precedents in cases involving alien mass murderers do not undermine the protections our system rightly affords to Americans. And the independence of civilian federal judges — a separate branch of government — will attract more cooperation from our allies (the countries where terrorists operate), who are reluctant to work with a military justice system under the unilateral control of the executive branch.
In short, it is a needed compromise, and it is there for the taking.— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.