By Professor Neal Katyal
The most important line in this summer’s Boumediene decision belonged to Chief Justice Roberts’ dissent: After the Supreme Court in 2004 gave Guantanamo detainees the right to habeas corpus, “Congress responded 18 months later…and cannot be faulted for taking that time to consider how best to accommodate both the detainees’ interests and the need to keep the American people safe.”
Some have been ignoring the Chief’s wise words and calling immediately for legislation to create a national security court as a response to the Court decision. As I have argued in the past, I support such a security court – but only if crafted wisely. A national security court could mean hundreds of different things, and the litany of policy questions are far too massive to be tackled in the next few months, right before and after a presidential election. Rushing ahead is a huge mistake that will weaken American security.
The current system of detention is broken. The Bush Administration asserted an open-ended power to detain people forever with no serious process. The result of that system was not only that the truly innocent could potentially be detained forever, it was also that the seriously guilty could call themselves mere shepherds and escape the consequences of criminal conviction. The Supreme Court wisely shut that policy down. Now, what is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.
That’s where a national security court could come in. A system staffed by federal judges, with experienced counsel on both sides, in which the government would have an ability to temporarily detain a dangerous individual. It might be limited to those situations when a criminal trial has failed. Or it might be limited in other ways – from a numerical cap on the number of detainees in the system to innovations such as forcing the government to give an escalating amount of money in foreign aid to the host country of the detainee for every additional month of detention. Every aspect of the system is up for grabs – from the rules of evidence to the length of an initial detention period and what appeals from the system would look like. The point is that there are literally hundreds of different models from which to choose – but they will be hard to craft in ways that protect security and liberty.
Each of those models will differ from our traditional system of justice. Americans take justifiable pride in our criminal trial system – and our system works best when we convict terrorists in our court system. We showcase the rule of law – and contrast it with the despicable world of an enemy who lacks respect for our way of life and our values. If we are to modify our system, even in the slightest of ways, we should do so gingerly, with appreciation for the risks involved.
The very worst time to contemplate such changes is during an election cycle or in its immediate aftermath. A rush to judgment produces slogans without a sustainable product. Consider what happened before the last election: The Supreme Court struck down President Bush’s Guantanamo trial system and Geneva Convention policies in June of 2006, and the Congress fast-tracked new legislation to try to overturn the Supreme Court three months later. Responsible people on both sides of the aisle warned that this legislation was unconstitutional and would be struck down by the courts, but the Administration did not listen. And so here we are again, seven years after the horrible 9/11 attacks with parts of that very law struck down by the Supreme Court, and only a single defendant tried at Guantanamo Bay.
We need more than machismo if we want to demonstrate to our courts and the world that we are serious about terrorism. This country desperately needs, and deserves, a serious inquiry, perhaps catalyzed by a bipartisan national commission, to examine whether a national security court is necessary and, if so, what it should look like. I recognize that many people disagree. That’s all the more reason to think it through responsibly – because the main alternative (Guantanamo, or a Guantanamo-like facility on American soil) is still an open-ended detention power.
We’ve spent far too many years with intemperate solutions that have gotten us nowhere. Many warned the Administration that it needed a plan for the day after the Supreme Court’s utterly predictable decision to restore basic rights to the Guantanamo detainees—but it stubbornly clung to notions of executive power that Boumediene eviscerated. If we rush into a national security court amid the tumult and empty slogans of a presidential election, we will need another plan for the next predictable “day after.”