Monday, July 16, 2007

Letters to editor of NYT re Goldsmith & Katyal on National Security Court

Letters to the editor at the NYT, Monday, July 16, 2007, responding to Goldsmith and Katyal on the broad proposal for a national security court. Letters include Human Rights Watch, the Center for Constitutional Rights, and the ACLU:


Jack L. Goldsmith and Neal Katyal are correct that the current system of detaining terrorism suspects at Guantánamo Bay (or in secret C.I.A. prisons) without charges or trial has been a legal and political disaster. But their proposal to create a special terrorism court with power to authorize preventive detention is not the right solution.

Under their proposal, suspects could be interrogated without access to lawyers, proceedings would be less public than in an ordinary criminal trial, and suspected terrorists could be detained indefinitely even if they have not committed any overt criminal act.

Professors Goldsmith and Katyal offer no standard or procedure for determining who is a terrorist. They do not explain why we can no longer rely on the criminal courts that were able to try and convict the first World Trade Center bombers. And their suggestion that suspected terrorists apprehended in the United States or abroad can be treated like traditional enemy combatants captured on a battlefield was recently rejected by a federal appeals court.

The effort to create a new legal system from scratch is what led the Bush administration into the current legal morass. We should not repeat that same error again.

Steven R. Shapiro
Legal Director
American Civil Liberties Union
July 11, 2007


Jack L. Goldsmith’s and Neal Katyal’s article is a terrific proposal to deal with the vexing problem of how to run a system of preventive detention for terrorists. They recognize both that our current system has evolved in a direction that is hurting the reputation of the United States around the world and that an ordinary criminal law model of handling terrorist detention will not work in time of war.

What is needed is a special Article III federal court with the power to preventively detain those who are dangerous and to try those who have committed crimes. Such a court must be set up by Congress, which must recognize that there are terrorists who need to be detained for the public safety even if they could not be prosecuted under all the elaborate rules of the criminal law that we apply to domestic criminal cases.

Terrorist detainees deserve more due process than they are currently getting but less than domestic criminal defendants. It has been nearly six years since the Sept. 11 attack, and it is time for Congress to set up such an Article III court. Congress must step up to the plate.

Steven G. Calabresi
Chicago, July 11, 2007
The writer, a co-founder of the Federalist Society, is a professor of law at Northwestern University.


To the Editor:

Jack L. Goldsmith and Neal Katyal call for creation of a preventive detention system. We already have that system at Guantánamo. The idea of making this system permanent and more acceptable by adding some bells and whistles — a special national security court — is going in the wrong direction. It is contrary to American values and will ensure the continued negative consequences of the current policy that the authors refer to in the article: harm to our reputation, disrupted alliances and the “war of ideas with the Islamic world.”

Preventive detention cuts the heart out of any concept of human liberty; it permits the state to imprison people who have not committed any crime and to do so outside of the rules of a criminal law system that has been with us for more than 200 years.

No domestic or international law permits preventive detention under the current circumstances. The International Covenant on Civil and Political Rights, a treaty binding on the United States, permits it only in the most drastic of circumstances when the actual continued existence of the nation is threatened. Even then, a situation we are not facing, the detentions must be of an exceptional and temporary nature — not potentially forever. The treaty expressly prohibits indefinite detention without charges and trial.

The right direction is to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.

Michael Ratner
Center for Constitutional Rights
New York, July 11, 2007


To the Editor:

Jack L. Goldsmith and Neal Katyal suggest that the United States, to protect itself from terrorist threats, must create a system of preventive detention to jail people who are considered dangerous but who have not committed an overt criminal act. What they do not explain convincingly is why existing federal courts are not already adequate to deal with terrorism suspects.

The current system is not, as they suggest, overburdened, nor is it incapable of dealing with classified evidence or evidence collected abroad. On the contrary, scores of terrorism suspects have been successfully prosecuted in federal courts, including based on testimony obtained abroad, and many more could be.

Likewise, Professors Goldsmith and Katyal do not show why, if there are deficiencies in the existing system, it isn’t better to simply correct those deficiencies, instead of creating a new legal system and one that severely undermines civil liberties.

The government’s misbegotten experiment in military commissions stands as a warning that building new and untested processes for handling terrorism suspects can backfire.

The existing federal courts system has weathered extraordinary threats to the nation over the last 200 years: terrorist bombings by the Klu Klux Klan and other domestic groups, violence by the Mafia and other criminal syndicates, mass labor unrest, a civil war and two world wars, among other crises. Many generations think they have faced the worst threat in the nation’s history, but the federal court system has outlived them all.

John Sifton
Senior Researcher on Terrorism and Counterterrorism
Human Rights Watch
New York, July 11, 2007

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