Blue Ribbon Committee Condemns National Security Courts
Republicans and Democrats alike agree that Guantanamo Bay should be closed. The military base has become a symbol of our devastating decision to surrender our most basic constitutional principles in the name of a fight against terrorism. Our failed detainee polices have undermined not only fundamental principles of fairness and justice, but also our national security. By ignoring our own laws, we have aided terrorists in recruiting additional members to their ranks, making our country less secure.
The consensus is that closing Guantanamo will allow us to begin restoring our reputation and securing international cooperation in our efforts to fight terrorism. But closing Guantanamo is, believe it or not, the easy part. The Constitution Project recently released “A Critique of ‘National Security Courts’” to help make sure that we get the next step right.
We must try suspected terrorists in Guantanamo and elsewhere in a manner that comports with the American constitutional system that has served us effectively for over two centuries. Our Article III courts and military courts governed by the laws of war are up to the task of handling these cases.
The calls for national security courts — specialized hybrid tribunals that would review the preventive detention of suspected terrorists (both within and outside of the territorial United States) and conduct the detainees’ criminal trials — are usually premised on the argument that traditional Article III courts are ill-equipped to handle these cases. The threats we confront with international terrorism are of such a different kind and degree than threats we have confronted in the past, goes the argument, that only a new system has the capacity to handle these cases. However, this claim is not substantiated and is, in fact, directly contradicted by a growing body of evidence that Article III courts have already successfully handled terrorism cases.
In a recent Human Rights First report, two former federal prosecutors examined more than 120 international terrorism cases brought in federal courts over the last fifteen years and found that the courts were able to try these cases without sacrificing either national security or the defendants’ rights to a fair trial. The federal courts used existing legal procedures to protect classified evidence, share exculpatory evidence with the accused, and establish a chain of custody for physical evidence, all without jeopardizing national security.
Even if one accepts the argument that terrorists do not deserve full constitutional protections and that the relaxed procedural and evidentiary rules offered by a national security court would be more than sufficient, it is impossible to avoid the necessary and untenable assumption that one can determine who is a terrorist and therefore entitled to fewer protections before any sort of a trial is held. This violates the presumption of innocence that serves as the foundation of our justice system and would establish a dangerous precedent of a separate and unequal criminal justice system that would not be easily isolated to terrorism cases.
The fact that there are alleged terrorists who can be tried in the civilian criminal justice system does not deny the fact that there are individuals who should be tried in appropriate military courts. People who are captured by the U.S. military on the battlefield as part of an armed conflict have traditionally been subject to military jurisdiction under the laws of war. This military system has long coexisted with civilian criminal justice system with the recognition that only individuals who are properly subject to military jurisdiction under the laws of war may be so tried.
As we confront enemies and threats unlike any we have ever known before, our military tactics must change, but our constitutional obligations do not. Indeed, our most recent experience with attempts to strip rights from individuals in violation of the Constitution demonstrates that when we violate our own constitutional principles, we undermine the very national security objectives we were trying to promote.
When Justice Kennedy rebuffed one such attempt in Boumediene v. Bush, he reminded us that "[t]he laws and Constitution are designed to survive, and remain in force, in extraordinary times.” In these extraordinary times, we must reject the calls to create national security courts as grave threats to our constitutional rights and to our national security.