Jack Goldsmith and Neal Katyal Propose Special National Security Court
Jul-11-07 09:58 am
Neal Katyal Arguing the Hamdan case
Jack Goldsmith and Neal Katyal have a fascinating op ed in today's New York Times in which the propose the statutory creation of a special "national security court" to oversee "preventive detention" of terrorist detainees. They write, in part:
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.Intriguing. I am not sure what I ultimately think about this. A couple of preliminary comments.
First, such a court would clearly have the advantages that Jack and Neal point out, and the FISA Court is a great example of how a specialized national security-related court can work. But I worry about the way in which such legislation would come out. The Military Commission Act is, in my view, a very bad example of a legislative attempt to deal with one of these problems. I can envision a bill fraught with many, many difficulties.
Second, I worry how this system would inter-relate with the process traditionally used by the military when persons are detained on the battlefield. Prior to 9/11, the procedure used by the American military seemed to work pretty well. In fact, my sense is that if the Administration had followed the approach that military wished to take regarding detention after 9/11, we would be in a much better place today.
Third, I assume that in any legislative approach to this issue, Congress would continue to confront a President who would insist that this procedure is not really binding upon the Executive because it would seek to restrict the commander-in-chief powers under the Constitution. As a consequence, it would seem to me that the current Administration would be reluctant to agree to any reasonable legislation on this, and if for some reason it did, there would be signing statements indicating that, in effect, the new statute would not be binding on the President.
I will be interested in seeing how other commentators respond to this idea.
About the editor:
Commentary and analysis at the intersection of international law and politics.
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