Jack Goldsmith and Neal Katyal support civilian counterterrorism court in NYT op ed

Jack Goldsmith, law professor at Harvard Law School and former Bush administration official, and Neal Katyal, Georgetown law professor and defense counsel in Hamdan, have a very important op ed in the New York Times, Wednesday, July 11, 2007, at A23, calling for the establishment of a civilian national counterterrorism court and a system of administrative detention. Goldsmith and Katyal are often on opposite sides of the fence on national security issues, so it is particularly important that they come together on this very important idea, which I regard as a crucial step forward for post-Bush administration counterterrorism policy.

(I'm pleased to say I've been calling for this very thing beginning with a piece in the NYT magazine in 2006, here, a piece in Policy Review, here, in a joint piece with Elisa Massimino on counterterrorism policy, here, and most recently in the short Fordham speech that I've referenced on this blog, here. Other people who have endorsed this idea include Benjamin Wittes in his new and very important Policy Review essay, here; and Stuart Taylor discusses the idea in one of his columns, here. I have also discussed the general idea in various posts on this blog - check out the counterterrorism tag.)

(UPDATE, Professor Ben Davis has a contrary take on the whole idea at JURIST, here. And Opinio Juris has a post by Roger Alford, with some lively comments, here, and Roger's Opinio Juris colleague Chris Borgen on Opinio Juris, here, pointing in the direction of Glenn Sulmasy's earlier 2006 arguments for such a court, here, and most recently, here. Scott Horton's rather favorable take, here. I've stuck excerpts from the op-ed below, a chunk of Scott Horton's comments, and something Stuart Taylor wrote earlier.)

The New York Times editorial page of Sunday July 15, 2007, editorializes around the issue, calling for Guantanamo to be closed and for lots to be released and others to be tried in US civilian courts and holds out the possibility of military trials for others, but without addressing the national security court idea directly - it does, however, mostly though not completely attack the German interior minister's proposals for special counterterrorism measures, the same ones that Scott Horton mentions in his comments below.

It is worth noting, however, that Lee Casey and David Rivkin have raised important doubts and objections to the idea in their recent WSJ op ed, here. Theirs is a very important demurral, and I strongly recommend that everyone involved in this kind of thinking read it closely and charitably, because even if you favor the general counterterrorism court and administrative detention idea, as I do, careful consideration of its limitations and difficulties, as Casey and Rivkin observe them, might help avoid a breakdown into partisan tears.

One thing they note, and I certainly think is right, is that the devil is in the details. It is easy for right and left, so to speak, to agree in principle to the idea of a civilianized national security court, a counterterrorism court, a system of civilian administrative detention, and the transfer of existing military commission cases over to such a court. When it comes down to the actual issues of procedure, evidence, secrecy, review, habeas corpus, how long detention could go on, etc., etc., however, it might turn out that there is no real room for compromise at all. It is very important for all of us - I include myself - who are seeking this kind of avenue for counterterrorism policy to understand that although, at a high level of abstraction, we can agree on such an idea, we won't necessarily agree on the details sufficient for it to be a truly bi-partisan policy at all. Elisa Massimino and I have found that in our recent collaboration on counterterrorism policy - there comes to be parting of views, even if we can find some very important general principles of agreement. That does not make the areas of agreement less important, but it is important to understand that those general principles will not necessarily carry agreement all the way down to the crucial details.

In that general spirit, it is important to understand Casey and Rivkin's broad point that this country has not generally supported concepts of administrative detention outside of the framework of war and the powers of the commander in chief in war. There is a reason why that is the power that has been appealed to by the administration. Outside of the war setting, this country has ordinarily had administrative detention only in very limited contexts, eg, mental health, an unclear public health category (ie, yes, we have historically had a Typhoid Mary quarantine power, but even that was largely rejected during the AIDS epidemic and it is not clear where it stands with, say, a super-TB carrier), and the blessing of the Supreme Court for some administrative detention for post-sentence-served child sexual predators (and, apart from the fact of the Court's blessing, of dubious constitutional provenance).

It is not a long list of circumstances - and for a liberal and libertarian society, entirely and properly so. The idea of a counterterrorism regime based around civilian administrative detention is a genuinely uncertain concept. And after all, the idea that if there is to be detention outside the confines of charges and trial, it should be in the context of war and executive war powers is, arguably, not an authoritarian idea, but a libertarian one. We should not, on this argument, be creating more flexible conditions of confinement without charges and trial, but limit it strictly to wartime exigencies - thus the insistence that this is an proper exercise of purely executive power is actually the libertarian argument.

The difficulty with this argument, of course, is that it leads to a relaxation of the legal concept of war, if you really intend to detain at least some people under some rubric in any case. In so doing it leads to a stretching, to the point of unrecognizability, important traditional and ordinary categories of the laws of war. The response - one which I accept - is that it is far better to create a new category of legal detention rather than continue to stretch-to-fit categories of the laws of war that do not really stretch-to-fit without undermining the fundamental and original category.

***
Note, too, that among the crucial questions are hugely important and controversial issues of the treatment of citizens/permanent residents versus aliens under such a system. This distinction takes on greater importance as the obvious incentives for terrorist networks to recruit among US citizens and dual passport holders increases over the coming years. To what extent is it possible to bring US citizens under such a system? Do territoriality, citizenship, alienage, etc., categories matter to such a proposal?

***
(The Hoover Institution has set up a new Task Force on National Security and Law, of which both Jack Goldsmith and I are members. Others include Benjamin Wittes, Ruth Wedgwood, Judge Richard Posner, and task force co-chairs Peter Berkowitz and David Brady. I am thinking of convening a fall session at my law school in DC or at the Hoover Institution's DC office where available members of the task force, along with others who are interested, from a wide range of positions, could brainstorm freely about the legal issues involved - constitutional, procedural, evidentiary, etc. - not to come to any conclusions, or to reflect any particular political viewpoint, or to have formal papers or presentations, but simply to try and get questions on the table that would have to be addressed by such a proposal.)

*** From the Goldsmith-Katyal op-ed:

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.

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.

Such a court would have a number of practical advantages over the current system. It would operate with a Congressionally approved definition of the enemy. It would reduce the burden on ordinary civilian courts. It would handle classified evidence in a sensible way. It would permit the judges to specialize and to assess over time the trustworthiness of the government and defense lawyers who appear regularly before them. Such a court, explicitly sanctioned by Congress, would have greater legitimacy than our current patchwork system, both in the United States and abroad.

Criminal prosecutions should still take place where they can. But they are not always feasible. Some alleged terrorists have not committed overt crimes and can be tried only on a conspiracy theory that comes close to criminalizing group membership. In addition, the evidence against a particular detainee may be too difficult to present in open civilian court without compromising intelligence sources and methods. And the standards of proof for evidence collected in Afghanistan might not meet every jot and tittle of American criminal law.

A Congressionally sanctioned system of preventive detention, which would supplement the criminal process, is far from unprecedented. The Supreme Court has recognized that the president can detain traditional enemy combatants during wartime. The court has also long approved preventive detention for people who are dangerous to society — the insane, child molesters, people with infectious diseases, and the like — but who have not committed crimes.

Congress should draw the national security court’s judges from a pool of current federal judges, the same process used for the special court we already have to issue intelligence warrants. The court would have a permanent staff of elite defense lawyers with special security clearances as part of its permanent staff. Defense lawyers trained in the nuances of taking apart interrogation statements, particularly translated statements, are crucial because often the legal proceedings will involve little else in the way of evidence.

Congress should require the national security court to make sure that there is a continuing rationale to detain people years after their initial cases were heard. Congress should also insist on rights of appeal for detainees, ensuring scrupulous review by a second layer of specialized, repeat judges who will keep the initial judges on their toes. And consistent with the values enshrined in the Constitution’s equal protection clause, Congress should insist that the same rules apply to citizen and non-citizen terrorist detainees.

Detainees, however, need not be given the full panoply of criminal protections. A detainee may not be able to meet his lawyer right away, particularly if interrogation has just begun. A terrorist captured in Afghanistan should not be able to seek release because he was not read his Miranda rights. A national security court, while it would operate in public, would not have the same public and press access as an ordinary criminal trial.

We already have specialized federal courts to deal with matters like bankruptcy, taxes and patents; the case here is far more compelling. In the past, Americans might have hoped that a national security threat would abate over time, and so the pressures on the civilian courts, whatever they were, would subside. Today we have no such luxury. We must create sensible institutions for the long haul.

*** And from Scott Horton's reaction in Harper's:

This proposal is likely to be viewed as anathema to civil libertarians. But that would be foolish. Nations around the world have maintained the essential features of a liberal democratic society while keeping a regime of preventive, or investigatory detention. Indeed, this has long been the norm in civil-law regimes, and the greater skepticism of the common-law countries has never been absolute. America has been something of a proud outlier on the issue.

The focus in the coming national debate should be on the evidentiary showing based upon which preventive detention can be ordered (let’s take it as a given that it should not be available on the executive’s whim for other than the briefest period, particularly considering the massive abuse that has been demonstrated over the last six years, but on the other side the cumbersome U.S. criminal justice rules on evidence would not apply), and the maximum term available. This is where the debate has focused in Britain’s House of Lords for the last four years, for instance. And on the continent, what is to us so controversial, has never been an issue. The forthcoming Lex Schäuble in Germany, reviewed in the current Spiegel, for instance, includes a framework for targeted killing, the accumulation of data on passports, the use of a Trojan virus to inspect computers without warrant and other measures, but does not discuss preventive detention because that has always been available.

Of course, the English-speaking world has had some very unpleasant experiences with national security courts. The Founding Fathers were still acquainted with them and hated the memory. The trick here is to draw on that and more modern experience to assure that any new institution gives a high priority to justice alongside of state security. The Katyal-Goldsmith column builds sensibly towards a new first step.

*** Stuart Taylor:

OPENING ARGUMENT
The Case For A National Security Court

By Stuart Taylor Jr.,
National Journal
Monday, Feb. 26, 2007

A front-page, February 20 federal appeals court decision moved another big "enemy combatant" case down the road toward an eventual Supreme Court decision, probably in June 2008. But the outcome, like the current situation, will be unsatisfactory no matter how the justices rule.

The 2006 Military Commissions Act makes it harder to get other nations to help us get our hands on bad guys.

This problem is one that only Congress can solve: how to handle appeals by foreigners who are detained indefinitely as enemy combatants by U.S. forces abroad but who claim to be innocent civilians. Despite two new laws over the past 14 months, Congress has not yet devised a process that is either effective in catching and incarcerating bad guys or fair in the exacting eyes of world opinion.

The justices cannot solve this problem without unseemly gymnastics, because current law presents them with two bad alternatives. The first would be to uphold the sharp restrictions on federal judicial review of appeals by militarily detained terrorism suspects that Congress imposed in the October 2006 Military Commissions Act. That's what a sharply divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did on February 20, in Boumediene v. Bush [PDF].

But as my December 18 column details, the MCA, even if constitutional, is neither fair to detainees nor credible to world opinion. It is thereby self-defeating, because it makes it harder to get other nations to help us get our hands on bad guys in the first place.

For these reasons the justices may well reverse the D.C. Circuit and strike down the relevant MCA provisions. Such a decision could, if written broadly, give every suspected terrorist captured anywhere in the world a historically unprecedented federal constitutional right to file a habeas corpus petition in federal district court demanding legal representation, release, a ban on interrogation, and/or nicer conditions of confinement. Such an outcome might (or, in these times, might not) satisfy world opinion.

But it might also make it unduly hard to keep bad guys locked up and to get information from them, by inviting disruptive and costly judicial interference in military decisions that most judges are ill-equipped to second-guess. Who would decide, for instance, whether terrorism suspects newly captured abroad, who may know of planned attacks or the location of their confederates, immediately get Miranda warnings and lawyers, who will tell them to answer no questions?

Consider a published boast (in Mother Jones) by Michael Ratner, head of the left-leaning Center for Constitutional Rights, which has coordinated the legal representation of hundreds of detainees at the military's Guantanamo Bay prison camp: "We have over 100 lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they're doing. You can't run an interrogation... with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?"

Should detainees, who may end up being released, get access to sensitive national security secrets that are arguably relevant to their cases? Should their lawyers? Should such secrets be aired in public proceedings?

Consider the list of almost 200 unindicted co-conspirators, including the then-obscure Osama bin Laden, that prosecutors in the 1995 trial of 11 subsequently convicted Islamist terrorists were legally required to send to defense counsel. "That list was in downtown Khartoum within 10 days," U.S. District Judge Michael B. Mukasey of Manhattan, who tried the case, recalled in a recent panel discussion. "And he [bin Laden] was aware within 10 days... that the government was on his trail."

In another judge's case, Mukasey recalled, "there was a piece of innocuous testimony about the delivery of a battery for a cellphone"; this tipped off terrorists to government surveillance "and as a result [their] communication network shut down within days and intelligence was lost to the government forever, intelligence that might have prevented who knows what."

Yet another cost of the criminal-justice approach: For 11 years, federal marshals had to provide 24-hour protection to the two judges.

Should a Marine sergeant be pulled out of combat in Afghanistan and flown around the world to testify at a detention hearing about when, where, how, and why he had captured the detainee? What if the Northern Alliance or some other ally made the capture? And should the military be ordered to deliver high-level Qaeda prisoners to be cross-examined by other detainees and their lawyers?

In our criminal-justice system, judges are trained to follow precedents that tilt against the government on such questions. The process is appropriately designed to avoid wrongful convictions in ordinary criminal cases by guaranteeing defendants elaborate procedural protections and full disclosure of all possibly relevant evidence.

But the question whether to detain a suspected foreign terrorist calls for striking different balances. It's one thing to err, when in doubt, on the side of releasing a burglary suspect, or a suspected tax cheat, mobster, or even murderer. It would be something else to err on the side of releasing a man who might then mass-murder dozens, hundreds, or thousands of innocent people, possibly with a chemical, biological, or nuclear weapon.

If our judges were all as good as Mukasey -- who spanked the Bush administration in 2003 for its lawless, long-term, incommunicado imprisonment and interrogation of suspected terrorist Jose Padilla -- this country might not face much risk of judicial insensitivity to national security concerns.

But some other judges have been so reflexive in applying the criminal-justice mind-set, plus impossibly vague international human-rights standards, as to suggest that review of military detentions and trials should be very tightly constrained by congressionally specified rules and done by experts.

Congress moved in this direction in both the December 2005 Detainee Treatment Act and the October 2006 MCA. But as noted earlier, Congress went too far.

Even Andrew McCarthy, a conservative expert who sees the current process as a good one, admits that it has failed in the "imperative to demonstrate to national and international audiences that it was capable of dealing fairly and expeditiously with alien combatants," partly because of the "poor performance of the executive branch."

McCarthy, who once prosecuted big terrorism cases and is now director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, adds this: "If other nations, unwilling to prosecute and sufficiently punish terrorists themselves, become similarly unwilling to extradite them to the United States due to what they regard as a lack of fundamental fairness and independence in the prospective trial proceedings, it will be cold comfort indeed that those proceedings are perfectly adequate (even exemplary) under our Constitution and laws."

He thinks the best solution is for Congress to create a new National Security Court independent of the executive branch. Other leading experts agree. They include moderate Democrat Neal Katyal, the Georgetown law professor who (much to McCarthy's regret) won the Supreme Court ruling [PDF] last June that President Bush's military commissions were illegal.

These and other experts disagree on the difficult details. But most agree that the new court should be staffed by already serving federal judges from around the country, to be chosen by the chief justice based on their fitness for the assignment. The judges would take time from their regular duties to review military detentions, plus any war-crimes convictions by the congressionally reconstituted military commissions.

Some see the 29-year-old Foreign Intelligence Surveillance Court as a model. It hears (in secret) requests for warrants to intercept communications from or to search through the possessions of suspected international terrorists and spies. National Security Court judges would become expert in assessing the security costs of requiring various procedural protections for detainees.

"Right now, these cases are heard by different courts, with different defense lawyers and different prosecuting attorneys," Katyal says. "None of them are really repeat players; none of them have the incentive to moderate their claims in order to build credibility. Creating a National Security Court, with repeat-player lawyers and judges, will change the entire dynamic, and help avoid the excessive rhetoric that has characterized both sides in the war on terror. It would also send a signal to the world that we have a serious process in place, one that we would feel comfortable applying to our own citizens."

Many libertarians and human-rights activists, on the other hand, would settle for nothing less than the full panoply of protections afforded to ordinary criminal defendants. They should be careful what they wish for. As McCarthy points out:

"Enemy combatants are often in a position to be killed or captured. Capturing them is the more merciful option, and making it more difficult or costly would almost certainly effect an increase in the number killed."

-- Stuart Taylor Jr. is a senior writer and columnist for National Journal magazine, where "Opening Argument" appears. His e-mail address is staylor@nationaljournal.com.