Yesterday officials in the Obama administration announced that it would use controversial military commissions to conduct trials of some of the detainees held at Guantanamo. This decision has created a furor amongst human rights groups because of the well founded belief that trials by these military commissions will make obtaining convictions against the detainees easier since the commissions are not subject to the stricter rules present in the traditional court system.
I would say that these groups are justifiably upset because Obama said during his campaign that the military commissions were unacceptable because they compromised American values. The new administration has revamped the commissions a little by imposing some more restrictions, but the restrictions still don't match up with those found in traditional courts. On one end of the ideological spectrum the ACLU has taken to calling this move the "Bush Obama Doctrine", while at the other end an attorney was glad that Obama had seen the light and decided to treat terrorists like warriors rather than criminals. I don't agree with either of these statements. I think that the ACLU is up to their normal hyperbolic rhetoric that should be dismissed, but I also don't believe that terrorists should be considered warriors. Terrorists are not warriors, unless they are fighting in a war zone like Iraq or Afghanistan, but nor are they traditional criminals.
We cannot fight the new terrorist threat through traditional means of law enforcement. The means by which we fight terrorism will be more sophisticated than that we use to combat traditional crime and will often rely on classified information. Because of the way in which we are going to have to fight terrorism we are going to need to create some sort of judicial body that has a different set of rules as well as expertise in dealing with national security issues. But hasn't the traditional court system handled national security issues in the past? Yes, of course they have; however, it has only handled sporadic cases in the past and I don't' believe that it is set up to effectively deal with the new emphasis on terrorism and the influx of terrorism cases. The fact is that the nature of terrorism/national security cases, namely the amount and nature of classified material, makes trying such cases in the traditional courts an overwhelming burden that can lead to the release of dangerous terrorists. All you have to do is look at the situation I mentioned in an earlier post about the Obama administration getting ready for a showdown with the courts because the courts have ordered massive amounts of discovery of classified material which would create an incredible burden on the government to produce. That burden ends up distracting national security officials from the job of fighting against national security threats. Don't get me wrong, I don't want to set up a kangaroo court to try suspected terrorists, and I know that some of you may get the impression from what I'm saying. I just think that modern terrorism represents something that transcends our notions of traditional criminal law, but falls short of a war.
A national security court is of course not an original idea of mine by any means. The U.S. already has a court along those lines in the FISA court. Also, a very early post in this blog examined a proposal for a national security court in detail. The bottom line is that we need to create a pragmatic system that offers suspected terrorists rights, but also serves our national security interests.