Goldsmith on detention options and national security courts

* Jack Goldsmith, “Long Term Terrorist Detention and Our National Security Court” (Feb. 9, 2009)

A Working Paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution

http://www.brookings.edu/~/media/Files/rc/papers/2009/0209_detention_goldsmith/0209_detention_goldsmith.pdf

This 20-pager is a must-read document for those following the debate about how best to proceed in connection with detention policy.  From the introduction:

For years there has been a debate about whether to create a national security court to supervise the non-criminal military detention of dangerous terrorists. The debate has many dimensions and is often confusing. Some national security court opponents are really opposed to the non-criminal military detention system that such a court would supervise, and insist that terrorists be tried in criminal court or released. Other opponents of a national security court accept the need for non-criminal military detention but do not favor institutionalizing a new and “secret” court to oversee these detentions. Proponents of a national security court come in many stripes as well. They advocate many versions of the court with many different tasks, ranging from various forms of detention supervision to the conduct of criminal trials.

This essay attempts to simplify these issues, at least a bit. It argues that the national security court debate—a debate in which I have participated1—is largely a canard. The fundamental issue is whether the United States should have a system of non-criminal military detention for enemy terrorists who for many reasons are difficult to prosecute and convict by trial. If the Obama administration chooses to maintain a system of non-criminal military detention—and for reasons set forth below, I think it should—it will necessarily also choose to have a national security court. This is so because federal courts constituting a “national security court” must supervise non-criminal detention under the constitutional writ of habeas corpus and a likely statutory jurisdiction conferred by Congress. Viewed this way, we have had a centralized and thinly institutionalized national security court for years in the federal courts of the District of Columbia, which have been supervising Guantánamo Bay military detentions. The hard question about a national security court, once we accept the need for non-criminal military detention, is not whether it should exist but rather what its rules should be and, just as important, who should make these rules. In my view, Congress and the President, rather than the courts, must play the predominant role in crafting these rules. After explaining these points, I outline some of the issues and legal policy tradeoffs that the political branches should address, including whether such a court should be an independent institution akin to the Foreign Intelligence Surveillance Court and whether it should conduct criminal trials in addition to supervising detention.

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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