There is a lot of rumbling suddenly about the possibility of Congress crafting new procedures for the handling of war-on-terror detainees. Much of this, for sure, is the result of the Supreme Court’s ominous announcement, on the last day of its term, that, next fall, it will hear a detainee case on which it had earlier denied certiorari — a case that squarely raises the question whether alien enemy combatants have constitutional rights (not just habeas rights but, if transnational progressives have their way, all the rights guaranteed to Americans by our founding law).
Many people are uncomfortable with the idea that a matter so crucial to America’s ability to fight war successfully may hinge on which side of the litigation Justice Kennedy gets up on that morning. It is virtually always better for Congress to legislate solutions in such circumstances than for the courts to impose them ad hoc — especially if such impositions take the form of a Supreme Court decision rooted in the Constitution, something that is almost impossible to overturn in our system and creates a constitutional crisis if ignored.
Last week, Jack Goldsmith of Harvard and Neal Katyal of Georgetown jointly penned a very interesting op-ed in the New York Times, discussing the idea of a new terrorist court. Ben Wittes has recently broached the subject at TNR. Stuart Taylor also wrote about it last February, based largely on discussions with Neal and me.
I’ve been thinking about this issue, and wishing Congress would act on it, for quite a while now–first publicly suggesting a National Security Court in a piece for NRO back in May 2004, after news of Abu Ghraib broke. Last year, with the help of the superb Alykhan Velshi, formerly of FDD, I did a comprehensive white paper for AEI called, “We Need a National Security Court.”
Thanks to the graciousness of AEI’s John Yoo, FDD is now at liberty to make the paper available publicly on our website, here.
The paper undertakes to analyze the history of, and problems with, treating terrorism as a criminal justice issue, as well as the difficulties of fitting its legal issues into the war paradigm. It proposes a hybrid: The creation of a new court that takes the best features of both systems, does not grant terrorists full constitutional rights, but has enough safeguards that other countries (in whose territories terrorists are likely to be apprehended in the future) would be more willing to extradite detainees to it than they have been to our present military system.
The paper is scheduled to be formally released later this year as part of an AEI book, Outsourcing American Law, derived from a conference John put together (and I participated in) back in 2006. The issue of creating a National Security Court was also center-stage last January at our inaugural conference for FDD’s new Center on Law & Counterterrorism. It’s my hope that this is the sort of contribution the CLC will make to important national security questions — and I’m gratified that there has been a good deal of interest in the paper in Washington over the last few weeks.