What to do with Gitmo’s detainees?

Today’s question: What to do with enemy combatants? Is there no one who should be held indefinitely? Shouldn’t there be a difference between prosecuting a war and prosecuting a crime? Previously, Sulmasy and Kaye discussed what President Bush could do between now and inauguration day to smooth the closure of the Guantanamo Bay prison and weighed the symbolism and merits of Obama’s promise to shutter the prison.

The third way: a national security court system
Point: Glenn M. Sulmasy

David, as you and I both agree, the inevitable closure of the Guantanamo Bay detention facility will give rise to the most important issue the United States will have to address -- what to do with the detainees. As I have said in this debate and elsewhere, the key for the Obama administration is to do this in a deliberative, bipartisan and pragmatic fashion.

The best way to transition out of Gitmo is for President-elect Barack Obama to announce his intention to close the detention facility in the early days of his presidency, but simultaneously announce the commissioning of a bipartisan working group to examine the various options for detaining and adjudicating the detainees. The key issues for this working group should be the use of the military commissions, switching adjudication to existing federal courts and prisons, examining the possibility of creating a national security court, or some combination of all of these options. The group should report their recommendations to the president no later than Aug. 1, 2009.

In subsequent decisions on how to proceed, however, it is crucial for Obama not to simply shift the detainees from Gitmo into the United States. Preventive detention of the alleged terrorists has been viewed by many domestically, and even more so internationally, as an affront to the rule of law and a misapplication of the law of armed conflict. Thus, any regime established by the new administration should make clear there is a presumption against any form of preventive detention.

We agree that a purely law-of-war approach -- the use of the military commissions -- does not accommodate the demands of the war against Al Qaeda and has never achieved its true objectives. Similarly, I would caution the new administration to refrain from embracing a pure law-enforcement approach and simply moving the alleged terrorists to be tried in our existing federal courts. Such an approach would fail as surely as the commissions have -- and with potentially catastrophic consequences.

There are numerous concerns with using our existing federal criminal courts, including gathering evidence for the trials, potential disclosure of classified materials, the numerous problems associated with jury selection, and the perception that the detainees would have greater rights than legitimate prisoners of war, who would never have access to our traditional courts. Of great concern to me is the chance that the inevitable relaxation of constitutional protections required to conduct these trials might “bleed over” into day-to-day criminal prosecutions. The administration will rightfully want to demonstrate a fresh, new way of handling the detainee situation. The pendulum, however, should not swing so far in the other direction. A moderate, pragmatic approach is the answer.

The reality is that these fighters, like the war they are fighting, are a mix of both international criminal and insurgent warrior (minus the uniforms). The two prevailing paradigms, the law-of-war approach and the criminal-law approach, do not work well for this unique hybrid warrior. They require a third way -- a hybrid approach for successful detention and adjudication. A national security court system offers such an option.

Congress must create the new court system. The new courts would be a blend of the two prevailing systems. Most importantly, the system would be overseen by the Department of Justice instead of the Department of Defense. Generally, such a system would entail that those captured be brought to the United States, detained and tried on military bases. The national security judges would be appointed by the president to hear the cases (habeas corpus appeals would be heard by a panel of these judges); judge advocate generals could serve as both court-appointed defense counsel and assistant counsel to the prosecution.

Obviously, the devil would be in the details of such legislation. But the key for any new court system created by the government is that the national security court be truly adjudicatory in nature and not simply a new form of preventive detention. If set up properly, such a court would ensure that all alleged terrorists would be tried on an established timetable. They could not be detained indefinitely over the span of the “war on terror.”

Restoring America’s image is best served by ensuring that all detainees are afforded a timely trial. The national security court system, a hybrid of the two prevailing approaches to adjudicating detainees, would best achieve the delicate balance between ensuring the safety of our nation while still promoting human rights and the rule of law.

Glenn M. Sulmasy is on the law faculty of the U.S. Coast Guard Academy and an expert in national security law. He is the author of the forthcoming book, “The National Security Court System: A Natural Evolution of Justice in an Age of Terror” (Oxford University Press). The views expressed are his own.

Try suspected terrorists in existing federal courts
Counterpoint: David Kaye

We have now moved from the shared objective -- closing Gitmo -- to address what follows. What happens to the detainees who remain in U.S. custody after those who are “eligible” have been released? Where do we hold them, and how do we prosecute them?

These are obviously not idle questions. On Thursday, a federal district court judge ordered the release of five Algerian nationals who have spent more than six years at Gitmo. Six-plus years, and the government does not have enough evidence to justify the Algerians’ detention! Think about that. Although I agree that the process must carefully weigh all options and unravel Gitmo responsibly, we need a new detention and prosecution policy now. For that reason, and because I think this can be done swiftly through a process of presidential proposal and congressional consultation, the framework for a post-Gitmo policy can be set up without a blue-ribbon commission.

Still, we seem to agree on some key points: The shift to the continental United States cannot simply involve moving Gitmo stateside. We have to avoid a system of preventive detention, in which individuals are held indefinitely without charge; we should put aside the military commissions as a tool of prosecution; and we need to ensure against, as you put it, the “relaxation of constitutional protections.” I would also add what is implicit in your point: The detainees will have to be held in federal facilities in the continental United States.

We part ways, Glenn, on the idea of a national security court. At the very least, it seems hyperbolic to suggest that the federal-court approach could have “catastrophic consequences.”

Federal courts have ample tools for dealing with the kinds of concerns you raise (though it is also true that Bush administration policies, such as coercive interrogations, may pose some problems in specific prosecutions). American lawyers have prosecuted terrorism cases in federal courts for decades, often very successfully. Classified evidence can be protected under federal law. Where there are significant security concerns, careful steps can be taken to ensure the protection of all those involved in the trial.

You raise a concern that detainees would be perceived as having greater rights than prisoners of war, but bear in mind that we would be treating suspects as criminals, denying them the platform and status of “insurgent warrior,” to borrow your nice phrase. No system is perfect, and I’m not saying that all or even most prosecutions will be successful or even easy to pursue, but I think that each of your concerns about federal courts can be met by looking at the history and practice of terrorism prosecutions in the United States.

Meanwhile, what value would we really get from national security courts beyond what federal courts already offer? I can actually imagine a national security court worthy of support, but only because the court I imagine would fully imitate (and in fact be) a federal court while merely allowing for an efficient, specialized docket in which each case is addressed by specialized judges in a timely manner.

Frankly, however, I’m not sure I understand the purpose of the national security court you describe. You say that it must be adjudicatory and not about preventive detention, but do you mean to suggest that the new court would only be available to try terrorism or war crimes cases? If so, federal courts do everything your national security court would do without requiring the lengthy process of getting legislation -- which would surely be imperfect -- through Congress. If, however, you mean to suggest that a national security court should also be available to adjudicate detainees’ status as unlawful combatants, that would be a preventive detention system to which I would object. (See this statement submitted to the Senate earlier this year, which more fully details a principled approach to detention.)

To sum up, our criminal justice system can work. It can fairly and effectively bringing terrorism suspects to trial while denying them the combatant status they so crave. Will it be perfect? Not a chance. But will it generally work while showcasing the basic fairness and rule-of-law commitment of the United States? Asked and answered.

David Kaye, a former State Department staff lawyer with responsibility for the law of war, is executive director of the UCLA School of Law’s international human rights program.