Ideologues who are invested in the detention policy debate generally break down into one of two camps: either they believe that existing institutions are sufficient to handle the challenge, or that the president needs a new, codified authority to preventatively detain suspected terrorists wherever he wants. The truth is that the middle ground is vast, and the good news is that the people responsible for crafting our policy tend to be very serious about finding it. Into that debate comes a serious new book by Glenn Sulmasy, a professor of law at the Coast Guard Academy and a U.S. Coast Coard Captain and member of the Judge Advocate Generals corps. Sulmasy expands on what he calls a "hybrid" approach to the quandary of prosecuting terrorists. He would create a national security court, run by civilians, that exists outside the federal court system envisioned in Article III of the Constitution. The standards of evidence would be changed to reflect the realities of counterterrorism, but every detainee would be presumed triable. They'd have to be tried within a year of being captured. Three-judge panels would use a "reasonable doubt" standard for convictions, and two of them must agree before a detainee could be found guilty. Those detainees found not guilty would be detained until a suitable place for them to go can be found. Detainees would be housed on U.S. soil in prisons built on military bases. The death penalty would only be applicable if the detainee's home country has legalized the practice. The President would retain some thin authority to detain those found not guilty under extreme circumstances, but there would be strict safeguards on the exercise of this power, and its exercise would be public. In recent weeks, Sulmasy has added a new provision: he believes that the legislation establishing the courts should sunset after five years, which would add a measure of review to the process and give Congress and the President the ability to see what has worked and what hasn't. Sulmasy's approach has many critics, including those who wonder how it differs, in practice, from a bill that would simply give the president indefinite detention authority outside the laws of war. They also worry that an extra-judicial court would be seen as illegitimate and therefore would not be effective. Yesterday, I spoke to Sulmasy about his proposal.
If the courts you set up are seen as criminal courts, they'd be subject to same constitutional constraints as the regular federal system. All the hard issue there aren't in the rules, they're in the constitutional restraints. So is this a modified version of a criminal court -- or a new institution?
Sulmasy: A new institution. A purely criminal court would necessarily then trigger all of the constitutional constraints and protections ordinarily afforded
traditional domestic criminals....The court system i embrace would be
completely new and it almost has to be, because what the administration is dealing with is a new type of detainee and
a new type of armed conflict. We are fighting hybrid warriors (mixture of criminal and warrior) in a hybrid conflict (mix of law enforcement and warfare). That's where the hybrid system emerges. It is logical to then create a hybrid court. It seems the Obama administration, while grappling with these very complex issues, now clearly recognize the solution unfortunately must be complex as well. The easy way to do it would be to put [the detainees] in either just the civilian courts and/or into the existing military commissions. But [because of the Supreme Court's rulings] the military commissions are tainted, irrecoverably, internationally and domestically, and in the civilian courts, it'd be like putting a round peg into a square hole. Neither of the existing paradigms answers the real challenges we are facing as a nation.
Legitimacy is critical, isn't it, especially to Obama. One of the criticisms of the national security court idea is that by creating a new institution, you're creating a legitimacy problem.
S: I think we have to be conscious of the legitimacy issue every step of the way. One of the items I think the last administration could be faulted for is not anticipating concerns
and attacks domestically and internationally. It always seemed they were on the defensive and caught off guard by the criticisms. Thus, I think any new system would have to
be rolled out properly, and not everybody will be happy. We have...in the military justice system, a decreased expectation of constitutional protection. We do that because we recognize there is a unique character, and unique needs for having this separate form of justice outside of our traditional federal courts. The military courts have different constitutional protections, different procedures and different participants than would an ordinary federal trial. Our courts have consistently accepted the premise that there is a need for a separate federal criminal system for the military. Similarly, with this new type of threat, it would be
logical that we set up a system for this unique entity now. A major part of the tainted
legitimacy of the military commissions resulted from the perceptions conveyed by having detainees - not in uniform, but in their traditional civilian apparel - standing before a military court. Even though the military court system is very fair, it gave the appearance of being unfair. I think that legitimacy will be gained by closing Guantanamo, and it will also be
gained by bringing the detainees to the U.S., by having civilian federal national security judges
try them in the civilian attire. It would have to be presented to the
world and "marketed," if you will, properly. However, the creation of the new court system can't be done in a vacuum. I've called for us to officially change the name of the conflict ... and for a conference to look at the Geneva Conventions to see how it applies to these folks.
In doing so, we'd at least show that this is an international conflict. One of the real concerns of civil libertarians is that we've only tried three people over seven years [in military commissions.] That's why my proposal is the creation of a court system that is presumptively adjudicatory and must be done within a specific time frame. Indefinite detention is not something that we necessarily should embrace as a process - an exception, perhaps, but not a part of any new system. Thus, legitimacy would be garnered by closing gitmo, having civilian oversight of the process, ensuring the legislation creating the court would be sunset after five years to prevent any potential abuse or changed circumstances, and making other changes to how we are fighting international terrorism (e.g. change the name of the war and host an international conference reviewing the applicability of Geneva to the conflict and possibilities for the need for an additional protocol). Of these, perhaps the most important, is the trial of all detainees. In doing so, we ensure support for the rule of law and still afford more process to the detainees than they would ordinarily receive in their nations of origin.
And if detainees are found not guilty?
The presumption would be that they are sent back to their country of origin or potentially we repatriate them in a holding, type-detention facility until we get them to a country. Again, different from others who have advocated for a similar court to mine, the national security court system i advocate in my book is presumptively adjudicatory. If there's one person who's acquitted, and the president says, "Well, I don't want to put KSM out in the world," there can be an exception to the presumption, rather than the other way around, rather than flipping it. The presumption must be for trial - and exceptions potentially could be made in rare cases - not the other way around.
But wouldn't you have to create a new authority to give the president the right to hold a person found not guilty?
Congress would certainly wantto have a voice in this discussion. Although i think an argument can be made the constitution gives the commander in chief the power in an ingoing armed conflict to do so if she thinks it is apropos - the reality remains in the 21st century that the Congress almost MUST be involved de facto. The way to do this is to place such authority into the system that specifically affords the President such power. It should, if created, be a non-delegable authority. It should never be delegated to the assistant secretary of defense for detainee affairs or other lower official than the President. It would have to be the president who would make such a major decision if deemed to be the right path to follow. Again, i envision this only occurring five times or less over the next five years - it would be the exception; not the norm.
This idea has been tagged by opponents as the equivalent of a sort of an extra-judicial court, fair or not. And there doesn't seem to be a groundswell of legislative enthusiasm. What's the reception been like?
S: When I present this proposal to people - formally and informally, I
find strong support and a desire to stop, listen and contemplate the
reasonableness of what is being offered. On both sides of the aisle, i
find people thinking my proposal is logical, pragmatic, bi-partisan,
and worthy of strong consideration. The biggest concern i have from
most people is their legitimate fear about the court being used to
keep people indefinitely. That is not
the norm at all with my proposal. I make that point throughout the book. The reality is that human rights isn't a Democrat-only issue,or a Republican issue - it's an American issue. If the National Security Court System is portrayed as the balance between national security and human rights (that President Obama eloquently noted in his May address at the National Archives) and we recognize that good people on both sides of the debate a struggling to find a way to balance these goals, and that this system offers a separate system that embraces parts of both systems without compromising either, it sounds even more
reasonable. The very real alternative to my proposal now is to keep between 50 to 100 detainees determined "too dangerous" indefinitely. And that, to me, is something that we should never embrace and never support. It compromises who we are as a people. The court system i propose categorically rejects that idea. The other item citizens, both here and overseas, seem to support is the idea of sunsetting any legislation for a court such as this. Doing so prevents any potential abuse that could occur in the future -- a five year sunset idea seems reasonable to most. So, i am encourage that there are those both in the Congress and the administration who are looking long and hard at my proposal and others. I become energized when i hear people see my idea as reasonable and pragmatic. I remain grateful that the administration seems to remain committed to exploring all ideas and trying to do so as part of the unenviable task of completing all of this by January 2010.