Tuesday, May 19, 2009


By William Fisher

The administration of President Barack Obama is considering the creation of a national security court to try cases in which there is enough reliable intelligence to hold a foreign terrorism suspect in preventive detention, but not enough to bring a case in federal court or even through military commissions.

Human rights advocates and legal experts confirm that the new institution is among the options being considered by the Justice Department Task Force Obama created to determine how best to adjudicate the cases of suspected terrorists held at the U.S. naval base at Guantanamo Bay, Cuba. Obama has pledged to close that detention center by January 2010.

But the idea of establishing a National Security Court is attracting widespread criticism because it would mean keeping some terrorism suspects on U.S. soil indefinitely.

While the idea of such a new court system is generally supported by conservatives, that support is far from universal.

Sen. Lindsey Graham, a conservative Republican from South Carolina and a military judge in the Air Force Reserve, notes the legal difficulties that would arise from a National Security Court. "How do you hold someone in prison without a trial indefinitely?" he asked.

Another prominent conservative, Bruce Fein, who served in the Justice Department under President Ronald Reagan, described the issues surrounding detention and trial of alleged terrorists as “the most important the Republic has confronted since the Civil War as to what America means. It should not mean Empire!”

Fein believes the regular Federal court system should be the venue for terrorism trials.

He told IPS, “Shortly after 9/11, Michael Chertoff, then head of the Criminal Division of DOJ, testified before the Senate Judiciary Committee that Article III federal courts have performed brilliantly in the trials of terrorism cases assisted by the Classified Information Procedures Act of 1980 (CIPA).”

CIPA enables trials without disclosing national security secrets where a summary of the incriminating evidence is sufficient to enable the accused to conduct a fair defense.

Fein says Chertoff told the Senate Judiciary Committee that "the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information."

He said the Obama administration “has failed to adduce a crumb of evidence, experience, or intuition suggesting that a national security court is necessary to secure justice -- unless the term is meant to include convicting the innocent like a page from Orwell’s 1984!”

Since 9/11, Federal courts have tried approximately 120 terror-related cases, with defendants including some considered among the most dangerous.

Prof. Francis Boyle of the University of Illinois law school agrees. He told IPS, “The proposal to establish a ‘National Security Court’ here in the United States would constitute a U.S. Constitutional abomination.”

“It would simply import the Gitmo Kangaroo Courts into the United States itself and purport to render these U.S. domestic kangaroo national security courts part of our longstanding constitutional system for the administration of justice going back to the foundation of our Republic,” he said, adding,

“U.S. domestic kangaroo National Security Courts would debase and degrade and corrupt and ultimately co-opt America's Article III Federal Court system, up to and including the U.S. Supreme Court. They would be one step removed from establishing a police state, which is really what their proponents have in mind,” he said.

A similar view is expressed by Chip Pitts, president of the Board of Directors of the Bill of Rights Defense Committee. He told IPS,

“The basic problem with National Security Courts is similar to that with military commissions or other second-tier systems not offering the full panoply of basic human rights and civil liberties to defendants: they posit a category of people (suspected terrorists) purportedly not entitled to basic constitutional and human rights including a full and genuine presumption of innocence with the associated opportunities to fairly defend themselves.”

He added, “These have been the very concerns prompting the U.S. to routinely object when such courts are used by other countries.”

He said, “The bottom-line is that such courts – like military commissions applying outside of the usual circumstances (real-world war, with battlefields etc) – are neither needed nor a good idea. They would risk being broadened and subjected to mission creep, but even if they can be limited to the circumstances contemplated would be an alarming step along the road toward a very different country indeed from what our founders envisioned.”

“The rule of law, by contrast, has proven to be a pretty good idea, along with its associated notions of human rights/civil liberties,” he said.

Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, believes the establishment of National Security Courts “would be a terrible mistake.”

He told IPS that these new courts “would institutionalize many of the worst features of Bush administration policies, perpetuating both indefinite detention and trial of terrorism suspects outside the established federal criminal courts.”

He added, “National security court proposals are riddled with constitutional flaws including reliance on secret evidence, elimination of core constitutional safeguards like the right to confront one's accusers, and the absence of protections against the use of evidence obtained by coercion. While they might be sold as a reform measure, national security courts are part of an agenda to continue the failed Guantanamo system rather than to end it.”

Brian J. Foley, Visiting Associate Professor at the Boston University law school, says U.S. detention policy “needs rethinking.”

He told IPS, “The current Guantanamo system has rules that are too soft and allow roundups of suspected terrorists based on unreliable evidence. Interrogating these people using harsh methods leads to false confessions and other statements calculated to end the abuse. Threatening them with trial by what amounts to a kangaroo court will also cause many to confess falsely.”

He says the result is that “U.S. anti-terror officials end up with a false picture of the enemy and waste their time chasing false leads and phantoms, which can distract them from actual terrorists. If the U.S. is to have a special court system for terrorists, it should be focused on coming to accurate results, not simply politically expedient convictions.”

Foley sees the current debate as an “opportunity for policymakers to think really hard about accuracy and about how rules can foster accuracy.”

He explains: “Most discussions right now are 'rights'- based. Accuracy, though, should be the focus on any such new court system”

He said he is “not convinced that alleged terrorists and war criminals and war criminals should not be tried in our regular courts. It would be easier to tinker with the existing system (which has developed slowly over the years) if necessary rather than building an entirely new one.”

Mark Shulman, a professor at the Pace University law school, sees an ominous similarity between the current discussion and the experiences of other countries.

“National security or terrorist courts in other countries offer troubling lessons, mostly because of their implications for the respect for civil liberties generally -- not only of the accused, but of the wider population,” he said, adding,

“Existing proposals to create such a court in the United States inadequately account for this risk, or explain how it would be minimized or mitigated. “Emergency systems in other countries have invariably reduced civil liberties for the general population.”

He emphasized that “it is important to recognize that these emergency systems in such diverse jurisdictions as Great Britain, Malaysia, and South Africa have diminished freedoms for society as a whole.”