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Against a US 'Terrorists' Court'

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says it is a sad day for America when respected legal scholars writing in the New York Times are advocating a separate US judicial regime - what they call a "national security court" - to govern preventative detentions...


After reading an op-ed in the New York Times in which Jack Goldsmith and Neal Katyal propose as a bipartisan measure the creation by Congress of a "Terrorists' Court," I am compelled to comment. Goldsmith and Katyal say they are maling the proposal because, “Nearly six years after 9/11, the government’s system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts. “ They go on to say that “The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.”

What a sad day! I am amazed! Law professors who are preventive detention advocates! A National Security Court! Have things gone this far in this country that people are really mulling seriously the merits of a preventive detention regime? Is the hysteria this crazy?

I would ask all people of goodwill to take a quick look through the various cases that the federal courts have dismissed on state secret, federal officer immunity, political question etc. doctrines where people held in detention have complained of "horrendous" treatment and the courts have shown absolutely no interest in exploring those claims. I would ask you to look at the recent “standing” decision of the Court of Appeals in the ACLU vs. NSA case and recognize that, once an issue is presented in this environment in a national security context, if one complains the courts does not want to hear you as those fearful of having lost rights are not considered sufficiently harmed. All of those decisions have been made by eminent federal judges and the necklace of decisions from the perspective of vindication of basic rules of international law or constitutional law (as the lower court did in the case of ACLU vs. NSA but the Appeals Court did not) is terribly troubling. And with the decisions that appear to be shifting against the “little guy” in this term of the Supreme Court I as one am terribly concerned that ultimate appellate review will not be better.

Might I suggest that this is a further iteration from the Presidential Military Order, through the CSRTs and MCAs, through centralizing in the DC Court of Appeal, now into a fourth mutation to keep moving the ball on what we are doing. It is like an intoxication with improvisation.

Might I suggest that this idea be dismissed immediately. Might I suggest we do the hard work of getting back on track first. First, might I suggest that we hold the detainees that we have in accordance with our constitutional and international law obligations as traditionally understood for at least the past 60 years. Second, might I suggest that we close the black sites - permanently. Third, might I suggest that we end the extraordinary renditions for torture - permanently. Fourth, might I suggest that we close Guantanamo and place detainees in places similar to what we did stateside during World War II. Fifth, might I suggest that we not place people in black holes – ever and wherever. Sixth, might I suggest we comply with Geneva Conventions and other international law when we interrogate people. Seventh, might I suggest that to show the world we mean business we criminally prosecute in U.S. domestic courts our high-level civilians and generals who put in place this improvised horrendous system that is both unlawful and causing us this much damage.

If we did those first seven things, I think we would go a long way towards rehabilitating America’s reputation in the world which is the most serious obstacle to our being able to confront what is a dangerous enemy. Of course, people who went along to get along with these practices in and out of government will be made to look bad by such an effort – but we might focus more on what is good for America than the personal reputations of those who have led us down this primrose path to perdition.

Beyond that, might I suggest that we scrap the Military Commissions Act of 2006 and related legislation that in my estimation reflects a thinly veiled attempt at amnesty of those who put in place the horrendous system. Might I suggest we step away from the effort to reinterpret international law obligations in domestic law to create a separate regime that does not really comply with international obligations. I hope you remember the testimony in Congress in favor of the Military Commission Act of 2006 where it was suggested that terms such as “outrages against personal dignity” in Common Article 3 were considered too vague. Might I suggest we turn away from these types of discussions and recognize the true intent was to receive permission to treat people we do not like in a horrendous manner. Might I suggest that we reject those who push that type of argument through playing on our fear – permanently.

Might I suggest that we have a reasonable review of the status of persons of concern to determine whether they are POWs, security detainees, or civilians. Rather than a special court, if we do not trust the discretion of our leaders, might I suggest that Congress frame clearer language as to when people are to be released in the event that the “cessation of hostilities” type standard is considered too difficult to apply in a “War on Terrorism” of indeterminate scope and duration.

Might I suggest that a national security court is really another phrase for what is called in French un tribunal d’exception a term that is heavy with connotations of Star Chamber justice. One of the great things about state courts of general jurisdiction or federal courts of limited jurisdiction is that they are open to everyone and have to operate in the light of day. Adjustments have to be made and can be made for given cases. We might spend more money on more courts to allow us to have the sufficient number of judges around to do the hard work of their role – but I would hesitate to create such an exceptional court, with exceptional rules, and exceptional powers, that will overtime not be the exception.

Given the rarity of refusals of warrants in our experience with the FISA court that we have had over the past 6 year period, I am deeply concerned that a similar experience would happen with such a national security court.

Maybe Jack Goldsmith and Neal Katyal are just too young to remember the kind of horrendous domestic activities of the CIA and others pre-1973 as described only partially in the recent “Family Jewels” release. But I and many Americans are not. I can remember persons denied even the most basic right to travel through the denial of a passport to Richard Wright for the most spurious of reasons. Who would be a security risk? Would Rosa Parks? How about Ramsey Clark? How about Martin Luther King? How about Stokely Carmichael? How about Malcolm X? How about any person whoever stood up and protested the security state? I think it is incredibly naïve to think that such a national security court could be kept in a limited role.

I am not at all warmed by the appeal to American values, for we all know that is a dual edged sword. We have seen under the guise of American values efforts to maintain enshrine and enhance what could only be called domestic state terrorism against blacks in the South for so much of our history. We have seen a Senate that would not take up an anti-lynching law for so many years while people were lynched. We have seen waits of 40 years for persons to receive criminal prosecution of people who killed their brothers for expressing themselves during the civil rights movement, due to the unwillingness of state or federal prosecutors to do anything. In my lifetime, I have seen enough of the ebb and flow of American values on the issue of integration of blacks into society to understand that those values are not so stabilized and protective as such appeals would like to make us think.

So please kill this idea immediately. Do the hard work of fixing the security state in the ways it has run off the rails. That hard work will earn the respect and credibility. Not another improvisation or cosmetic window dressing – I and many Americans I suspect are fatigued by these legal games. And let the chips fall where they may.


Benjamin Davis is a professor at the University of Toledo College of Law

July 12, 2007


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