The Goldsmith-Katyal proposal for a "National Security Court" that could authorize preventative detention has provoked an extensive debate in the comments to this post at Opinio Juris. At Is That Legal? Eric Muller thinks the proposal "has a lot going for it," but is surprised that Goldsmith and Katyal would propose authorizing the preventative detention of U.S. citizens on the basis of simple group membership.
The idea of a domestic terror court is also advocated by my former colleague Amos Guiora. He discusses the idea here, and it's covered in the L.A. Times here.
[NOTE: I revised this post so as to more accurately portray Eric Muller's thoughts on the GOldsmith-Katyal proposal.]
UPDATE: Amos Guiora expands on his domestic terror court proposal here.
Related Posts (on one page):
- McCarthy's "National Security Court" Proposal:
- More on Terrorism Courts:
- The Terrorists' Court:
I still draw the line at U.S. citizens, who should either be prosecuted or else put under legitimate surveillance unless/until there's a basis for prosecution.
Anyways, from the GOLDSMITH / KATYAL Op Ed:
"Terror Court" is another example where people are proposing that civil rights should be inversely proportional to the severity of the accusation. I really have a hard time with that idea, in part because in encourages the government to make the broadest possible accusations to invoke a reduced set of Constitutional Rights. Seems like a fabulous recipe for disaster to me.
We never jailed communists simply for being communists during the cold war.
If there's no proof that a person was intending to commit a crime (otherwise we could presumably charge them- or at least surveil them until we gather more proof), how can we be sure we are even preventing anything? And when does preventative detention end? When we decide they have been "cured" of their desire to associate with the wrong people? How does anyone figure that out? Or do we just hold them until we decide the "war on terrorism" is over?That could be a long long time to hold someone for "association".
Actually, that's not entirely true. In the original "Red Scare" (1917-20) several thousand people were arrested primarily based on their membership in various sorts of socialist groups: http://en.wikipedia.org/wiki/Red_Scare
I'll emphasize that I don't agree with preventive detentions based on group membership, but I still thought it bore mentioning.
Otherwise I don't see that security courts wouldn't make sense. We have specialty courts for taxes, bankruptcy, etc. In fact I think it might be good simply to simplify, clarify, and unify procedures. District courts probably aren't the best place for security matters.
As for the powers given such a court. Well, we all want rights. Yet history shows civil rights are abridged when threats or dangers are sufficiently high. The question is always how high is 'high'.
Let's not just have a shabby "All Rise" for this court—no, we need more than that for the Honorable Judges of the Court of the Stars and Stripes Chamber...
Here's a John Philip Sousa march just made to order for this glorious and historical American court. It's their natural theme music [Real Audio] [more formats].
Just to keep things in perspective, remember that those running our government interpret current Supreme Court precedent to mean that U.S. citizens in this country -- even with habeas review -- already could be detained as "enemy combatants" with fewer procedural protections than those afforded to Guantanamo detainees today.
That was in the context of circumstances few had foreseen or thought about. Much less prepared for.
What we have now is different. I suggest we have few institutions whose structure was designed, either accidentally or deliberately, to deal with the current problem, which I don't have to elaborate.
I give people credit for trying to think of new solutions. Safeguards are important, and those who, in other circumstances sneer at the concept of the slippery slope are Viewing with Alarm, and may even be correct.
We have enough trouble--see Boston, Bulger, FBI, and informants--with the difficulties of keeping some kinds of investigations secret. How much more when the attorneys are likely to be funded by Saudi Arabia and casting their requests for discovery as widely as possible? Before anybody gets all faux outraged at this slur on attorneys, tell me Lynn Stewart was sui generis. Yeah, yeah, I know, she wasn't funded by SA, that anybody has shown. It's the thought that counts.
We have the probability of lawfare. How's the suit by the non-flying imams against those who may have alerted the cabin crew doing? Check out Janice Barton for free speech. It took a good deal out of her family to get the thing reversed by the Sixth Circuit.
I know, I know. Nobody is ever chilled by the thought of having to bankrupt himself to beat a frivolous lawsuit, and the concept of using that as a club never occurred to anybody. I know.
We have different circumstances and the insistence that no new arrangements are necessary or allowable is silly. I don't know what the answer is, but I wouldn't be interested in shutting down the discussion.
Uhhh, no it doesn't. The Supreme Court has no jurisdiction over state courts on correction of issues of state law -- its only "jurisdiction" in such a circumstance is to recognize it has no jurisdiction to correct errors of state law committed by state courts. Furthermore and more fundamentally, Congress clearly has the power to limit the jurisdiction of the Supreme Court on issues of federal law, and has done so quite consistently since 1789 in the first Judiciary Act. (A recent example is that under AEDPA the Supreme Court has no jurisdiction to review denials by Circuit Courts of petitions to bring successive habeas petitions.)
There were a few more civil rights era cases in that vein.
That seems to conflict a little with the phrasing that other courts are inferior to the SC. But some people spend lifetimes arguing about these matters; I am not one of them.
So the proposed security courts could operate independently of the SC if Congress so decided?
Me either.
Sigh. Yeah, I know. But the American soldier's oath is to defend the Constitution and 'working around' constitutional limitations is a pretty fundamental violation of that oath. And we're all soldiers in this war, or so we're told.
What's needed isn't "political consensus" but political leadership to remind us of our duty, and especially to remind the government of its duty. The personal safety of any or all of us isn't even in it.
To be more precise, do you think we could get a political consensus to destroy our enemies?
I don't mean the Bush administration.
I mean the ones who, in a real world, would fall under the definition of enemies.
I suspect that in the 'real world' of Washington there are no enemies, just people we've managed to offend. So the consensus -- or at least the majority position -- is for apologies, restitution and huggies all around.
But destroy our attackers? That would require taking seriously the notion that some people can't be bought, something a culture of manipulators is ill equipped to do. We will destroy our own institutions first, in an ill-considered attempt to control terrorist 'excesses' while they learn to love us, without ever considering that those 'excesses' are their essence.
So the answer to your question "do you think we could get a political consensus to destroy our enemies? " is "as of now, no." But things change and a fresh terrorist attack in the US, of undeniable viciousness, might even get around our political class's blinders.
One obvious example that comes to mind is gun owners.
Terrorists are like guerillas in the difficulty of pinpointing them -- that is the whole point of guerilla warfare. I can well imagine Napoleon hand-waving in Paris about how his generals in Spain simply needed to "destroy the enemy." Easier said than done.
What you may mistake for a lack of political consensus is actually a matter of military intelligence -- unless you are of the "nuke Karachi to kill the two dozen or so terrorists therein" persuasion, in which case please so state.
Our military can destroy enemies a hundred miles into space, five miles under the ocean. Enemies can be destroyed behind hills, under forest canopies, in ravines and city alleys.
The only remaining place to hide is among civilians, and that's only because we hobble ourselves. It wouldn't work against the Russians, or the Indians, or the Chinese, or many of the ME nations or African nations.
So we need to either be prepared to destroy any number of innocent civilians or to find the individual terrs amongst them.
Nobody wants to do the first, and the chattering classes are against the ssecond.
As Porlock points out, by implication and explicitly, the first will happen if we fail in the second.
Now, far be it from me to suggest the chattering classes want to hobble us in the second and continue to insist we hobble ourselves in the first in order to achieve a particular objective. Yup. Far be it.
Well, how about:
for starters? We've actually killed some of them since 9/11 but they declared war on the US in 1998 and we ignored them then. I'm pretty sure that if we singled out other Imams who declare jihad on us, or issue fatwahs against individuals like Salman Rushdie or Ayaan Hirsi Ali, as being literally at war with us and went after them with a military response they'd suddenly discover the virtues of moderation. Or if they didn't, then their countries of residence would, and deliver the malefactors to us in chains.
According to evidence provided by John W. Dean to the Senate, a master list was put together by then-White House counsel Charles W. Colson. The list was forwarded to then-White House Chief of Staff H. R. Haldeman and John D. Ehrlichman.
Those are the enemies you're talking about, right?