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.

Such a court would have a number of practical advantages over the current system. It would operate with a Congressionally approved definition of the enemy. It would reduce the burden on ordinary civilian courts. It would handle classified evidence in a sensible way. It would permit the judges to specialize and to assess over time the trustworthiness of the government and defense lawyers who appear regularly before them. Such a court, explicitly sanctioned by Congress, would have greater legitimacy than our current patchwork system, both in the United States and abroad.

Criminal prosecutions should still take place where they can. But they are not always feasible. Some alleged terrorists have not committed overt crimes and can be tried only on a conspiracy theory that comes close to criminalizing group membership. In addition, the evidence against a particular detainee may be too difficult to present in open civilian court without compromising intelligence sources and methods. And the standards of proof for evidence collected in Afghanistan might not meet every jot and tittle of American criminal law.

A Congressionally sanctioned system of preventive detention, which would supplement the criminal process, is far from unprecedented. The Supreme Court has recognized that the president can detain traditional enemy combatants during wartime. The court has also long approved preventive detention for people who are dangerous to society — the insane, child molesters, people with infectious diseases, and the like — but who have not committed crimes.

Congress should draw the national security court’s judges from a pool of current federal judges, the same process used for the special court we already have to issue intelligence warrants. The court would have a permanent staff of elite defense lawyers with special security clearances as part of its permanent staff. Defense lawyers trained in the nuances of taking apart interrogation statements, particularly translated statements, are crucial because often the legal proceedings will involve little else in the way of evidence.

Congress should require the national security court to make sure that there is a continuing rationale to detain people years after their initial cases were heard. Congress should also insist on rights of appeal for detainees, ensuring scrupulous review by a second layer of specialized, repeat judges who will keep the initial judges on their toes. And consistent with the values enshrined in the Constitution’s equal protection clause, Congress should insist that the same rules apply to citizen and non-citizen terrorist detainees.

Detainees, however, need not be given the full panoply of criminal protections. A detainee may not be able to meet his lawyer right away, particularly if interrogation has just begun. A terrorist captured in Afghanistan should not be able to seek release because he was not read his Miranda rights. A national security court, while it would operate in public, would not have the same public and press access as an ordinary criminal trial.

We already have specialized federal courts to deal with matters like bankruptcy, taxes and patents; the case here is far more compelling. In the past, Americans might have hoped that a national security threat would abate over time, and so the pressures on the civilian courts, whatever they were, would subside. Today we have no such luxury. We must create sensible institutions for the long haul.

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.