I want to talk about what the future could like in terms of detaining suspected terrorists. The procedures currently in place are lacking in specificity and scope. The holding of suspected terrorists in Guantanamo Bay was a political/public relations nightmare for the Bush administration, and for good reason. Those held at Gitmo were held for long periods of time with almost no due process safeguards and seemingly no hope of ever receiving any. The Supreme Court's decision in Boumediene finally found that the Combatant Status Review Tribunals were procedurally lacking and granted detainees the right of habeas corpus review. President Obama's orders are bringing an end to Gitmo and trying to find another way to deal with those being held there. As stated in a previous post, those orders also established a special task force to determine alternative procedures to deal with those prisoners captured in this non-traditional "War on Terror." The big question now is: What kind of alternatives can we use to deal with these prisoners?
Harvard Law professor Jack Goldsmith has a working paper out now that outlines what he thinks a new National Security Court might look like. The call of the paper is that the U.S. needs a separate system that allows for long term, non-criminal detention of suspected terrorists. This is because the normal civilian justice system can apply too much of a burden to hold suspected terrorists which leads to terrorists being released where they are free to commit more terrorists acts. You might ask: Isn't that precisely what we have at Gitmo right now and precisely what we are trying to get rid of? The answer to that question is yes. Goldsmith argues that we need to get rid of the old system and replace it with a new system containing a national security court that provides oversight and adds concrete procedures.
Goldsmith argues that it wouldn't be hard to do this because the federal courts in D.C. are already a de facto national security court. The D.C. District court is responsible for coordinating the Gitmo cases and conducting habeas hearings, with appeals going to the D.C. Circuit and ultimately the Supreme Court. Goldsmith says that the next step necessary is for Congress to create legislation to craft a framework for a national security court. Currently the D.C. courts are making procedures up as they go along, but the argument is that the executive should create the rules and regulations that govern a court system and not the courts themselves.
Let me go through some of the specific procedures and rules Goldsmith thinks a national security court should operate under, and then give my opinion on some of them:
Citizenship- Both U.S. citizens and non-citizens should be subject to the power of this new court. This is for two reasons. First, it is necessary to subject both citizens and non-citizens to the new court because it will add legitimacy, and not make it seem like the U.S. is only trying to deprive non-citizens of procedural protections. Second, Al-Qaeda and other terrorist organizations are actively trying to recruit American citizens and it is important to be able to deal with all terrorists in the same way.
Definition of enemy- This is a very familiar issue. How do you differentiate terrorists from other criminals in order to subject them to the specialized jurisdiction of a national security court? Goldsmith argues that those that "directly participate in armed conflict against the United States" is a good starting place for a definition of "enemy." He identifies two areas of contention in the "direct participation" approach. First, what is the scope of direct participation? It definitely includes those who attack the U.S. with guns and bombs, but what about those that provide assistance in the form of supply or financing. Are they directly participating in armed conflict? The second area of contention is how long should a civilian be considered to be in armed conflict?
I believe the answer to the second question is easy. I don't think there should be a time limit. There should be no statute of limitations for those that participate in or support terrorist acts. If a person directly participated in a terrorist act at any point they should be held accountable. The answer to the first question is a little more tricky. I think that people that supply and finance terrorist activities participate as directly in those activities as the ones who pull the triggers or flip the switches on detonators. Those acts can't happen without people giving terrorists the guns and the money. The trick with this will be where to draw the line. How much or how little connection to terrorist activity will be enough to subject someone to a national security court's jurisdiction? This question will probably have to be answered by legislation and judicial decision.
Evidentiary Issues- The first evidentiary rule Goldsmith promotes is that of allowing hearsay evidence. Second, he says advocates for the admissibility of information gathered in "illegal or morally problematic ways." Third, he says that allowing for ex parte admission of evidence is necessary, but the defendant''s counsel should be allowed to review the classified information. Finally, Goldsmith says that a Brady-esque burden should be on the government to provide exculpatory evidence to the defendant, and maybe even an "extra-Brady" burden of having to provide material information.
I think that Goldsmith is right on with three of the four here. I think that hearsay evidence should be admitted because of the evidentiary difficulty presented in many terrorism prosecutions, and that ex parte portions should be allowed, but the defendant's counsel should be allowed to participate and see confidential information. I also agree that the government should have to turn over exculpatory information, but I'm on the fence about forcing them to provide material information. I don't think I can get behind the admissibility of evidence obtained illegally or immorally. I'm assuming that illegally or immorally encompasses information obtained through torture and I'm not yet willing to say that I think evidence obtained through torture should be allowed in court.
Publicity- The procedures of the national security court should be public to the extent that they can be. Classified material should be kept from the public as usual, but aspects of the procedures that can be public should be.
Regularized Review- Non-criminal detention of terrorists should not be indefinite, but should be long enough to allow for sufficient investigation and protection of the public. Goldsmith proposes holding them for as long as six months at which point the detention should be reviewed by the court and either renewed or terminated. He believes that if the lawyers have to keep coming back to rejustify the detention that it will encourage them to either prosecute the prisoner or release him. Another component that could be added to this would be an increasing burden on the government to show the need for further detention. This could look like "preponderance of the evidence" on the first go round then to "clear and convincing evidence" then to "beyond a reasonable doubt."
I think this is a reasonable and procedurally sufficient process for non-criminal detention. If the government isn't going to prosecute the prisoner then it should have to justify his continued detention and that burden should get harder and harder. It's important to have such a process in place in order to avoid indefinite detentions.
Lawyers- Government prosecutors will come from the Department of Justice, and the defense attorneys will be government attorneys as well. He proposes a system where the prosecutors will rotate to the defense side and vice versa every few years, similar to military JAG programs. He mentions in passing the possibility of allowing private attorneys with security clearances to participate as well.
I'm not sure how comfortable I am with only allowing government lawyers to be defense attorneys. In a practical sense it may be the only way to do it because of the presence of classified information involved in such cases. Government defense attorneys would only need to be vetted once and given a clearance to view classified material. Allowing private lawyers could be a security nightmare in the clearance sense. Of course, government defense attorneys already exist at the state and federal level in the form of public defenders, but defendants also have a choice to find private counsel whereas with this system they may not have that option. Maybe a sort of provisional clearance could be granted to private defense attorneys; however, the burden of that kind of system could be very high. Regardless, I think that allowing private attorneys should be something that is considered in the debate.
National security court as a stand-alone institution- This would make the national security court similar to the Foreign Intelligence Surveillance Act courts meaning that they would be outside of the normal federal judicial court system. Goldsmith argues that there are 3 advantages to this: 1) judges could be drawn from federal courts around the country; 2) the court could more easily specialize; and 3) creating a stand-alone court minimizes the effect of "spillover" into the civilian justice system. Furthermore, the national security court should not be an extension of the FISA court system because that system proceeds more secretively and with much less transparency, which is something Goldsmith would like to avoid.
I agree with this completely especially because of the minimization of spillover into the civilian system. The national security court system will necesarily have to create special procedures and rules that should not be applied to the civilian system and isolating it as much as possible is a good idea.
I will end my summary and analysis here but check out the paper if you want to see Goldsmith's full argument. I've left out a few interesting sections.
If you are wondering, "Matt, how are you so well informed? Where do you get all of this fascinating information?" I can tell you it's not because I'm extremely well connected. I get most of this information from a national security mailing list administered by Wake Forest Professor Robert Chesney. It's a great source of information and you can check it out here.