Commentary

National Security Court: Reinventing the Wheel, Poorly

By David Rittgers
This article appeared on FindLaw on September 21, 2009.

One of the side effects of the Guantanamo detainee dilemma is a cottage industry of law professors and national security buffs proposing a national security court, a new federal court designed to deal specifically with terrorist cases. The idea is that just as we have specialized courts for immigration and bankruptcy, we ought to have one for terrorists.

The first book devoted to this proposition, Glenn Sulmasy’s The National Security Court System: A Natural Evolution of Justice in an Age of Terror, advances the idea of a new “third way” to take federal terrorism charges out of normal district courts and into a new civil-military hybrid tribunal.

Sulmasy begins with a good summary of how military commissions have historically been prone to abuse. Andrew Jackson used military commissions to try American citizens in New Orleans after successfully repelling British forces in the War of 1812, imposing martial law on the city until a formal declaration of peace arrived. When a local civilian, Louis Louallier, criticized the decision in a local newspaper, Jackson ordered him arrested and tried before a military tribunal for “inciting mutiny and disaffection in the Army.” When Louallier filed and received a petition of habeas corpus from a federal district judge, Jackson ordered the judge arrested as well. After Louallier’s acquittal, Jackson disregarded the verdict and kept him in jail until the end of the war. Jackson released the judge, but “asked” him to remain outside of the city limits until the war was officially over.

Sulmasy also gives the reader a history of the use of military commissions in the Civil War and World War II, where FDR used a hastily-assembled military commission to try eight German saboteurs that washed up on American shores intending to conduct a campaign of sabotage. The Supreme Court upheld their conviction, and this precedent was used after September 11, 2001 to justify President Bush’s commission system at Guantanamo Bay.

Sulmasy argues that the Supreme Court’s invalidation of the military commissions in Hamdan v. Rumsfeld was wrongly decided, as was the decision to grant detainees the right to file petitions of habeas corpus in Boumediene v. Bush. Unsurprisingly, his proposal for a national security court system shares much with Bush’s original conception of military commissions, but he goes even further by trying to revive many proposals that would roll back core civil liberties.

In Sulmasy’s proposed “national security court,” suspected terrorists would be tried in front of a panel of three federal judges, violating their Sixth Amendment right to a jury trial. Defendants would be detained, tried, and imprisoned on military bases, a practice out of step with a federal statutory bar to the military’s direct participation in domestic law enforcement. The Bush administration kept its military commissions more palatable for the public by keeping American citizens and aliens detained in the United States out of Guantanamo. Sulmasy proposes that we bring Gitmo home and open its doors to citizens and non-citizens alike.

Sulmasy does endeavor to solve one perceived problem with the military commissions that military lawyers have expressed to me: few courts-martial deal with contested felony charges, so most military lawyers have little courtroom experience. We are now entrusting them with the biggest trials of our time. Sulmasy proposes to fix this by using veteran federal prosecutors instead. The catch? The defense counsel would be those same military lawyers he says are not up to the task of prosecuting the case, unless the defendant could afford his own attorney with a high-level security clearance.

Sulmasy also reduces the core protections of defendants by barring the use of the exclusionary rule, the doctrine that bars evidence collected illegally or otherwise in violation of the law. Without the prospect of excluding evidence collected in ways barred by federal courts, there is no incentive for law enforcement officers to follow any rules. Looking for terrorists? No warrant? No problem.

Sulmasy attempts to allay fears of lost civil liberties by claiming that this court’s jurisdiction is limited to “international terrorists” such as al Qaeda and their ilk. In this, he falls into the trap that Benjamin Wittes, another proponent of national security courts, warns us of:

“a slippery slope in which what they approve for Khalid Sheikh Mohammed today the government will use for someone like Jose Padilla tomorrow, a minor drug offender next week, and a political dissenter five years from now.”

Sulmasy makes the leap from Khalid Sheikh Mohammed (a non-citizen terrorist organizer) to Padilla (a citizen terrorist operative) immediately, leaving the rest of the downhill slide to broader jurisdiction to an aggressive prosecutor’s argument or a subsequent change in the court’s authorizing statute.

After all, with an increasingly connected world, the definition of “international terrorist” is an elastic term. Would someone have to have orders from abroad to be “international”? If so, then Jose Padilla, alleged “dirty bomb” plotter, certainly qualifies. What about two American citizens who traveled overseas to help suicide bombers planning to infiltrate Iraq and attack American troops? What about a native-born American citizen who met with like-minded extremists in Canada and sent surveillance videos of potential targets to a radical in London? Federal courts dealt with all of the above. No special court needed.

The transition to prosecuting drug charges in a national security court is no great leap either. We already have a federal narco-terrorism statute, a long-standing “war on drugs,” and a government ad campaign telling us that buying drugs supports terrorism financing.

For all of the courage that Sulmasy exercises in giving a specialized court extraordinary power, he shies away from letting terrorists lose when they unleash a tirade in the courtroom. While he claims that it is necessary to close sessions of court so that “hearings do not become propaganda tools for the enemy,” this is part and parcel of letting civil society defeat violent extremists in the marketplace of ideas. The disgruntled student who drove through the center of the University of North Carolina and wounded nine had such an outburst (which you probably wouldn’t know about unless you read it here) and is now serving a minimum of 26 years in a state prison. At his sentencing, Shoe Bomber Richard Reid slandered the court and declared that he was at war with the United States. Federal District Judge William Young told Reid, “You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature.” Reid received three life sentences plus 110 years, which ended the debate rather firmly.

Sulmasy tries to work up the reader with potential legal fallout from the Boumediene decision, alarming us with the prospect of civilian courts requiring soldiers and Marines on the battlefield to get a search warrant before they enter an al Qaeda safehouse. The Supreme Court has held that the Fourth Amendment protection against unreasonable searches and seizures does not have any extraterritorial application, so this simply doesn’t hold water.

To be fair, Sulmasy comes by his convictions that blend military force and law enforcement honestly. He is a Coast Guard officer and teaches law at the Coast Guard Academy. The Coast Guard is the only uniformed service that falls under the Department of Homeland Security and not the Department of Defense (www.uscg.mil tells you that they fall under Homeland Security — should it be .gov instead?). Coasties conduct rescues at sea, drug interdiction, and combat missions in the waterways of Iraq, so he may be more comfortable blending the military with civil society in a way that would have the rest of us crying Posse Comitatus.

Sulmasy’s book is a valiant attempt to resuscitate ideas that have been rejected by the courts and policymakers. In the end, his case falls short. President Obama moved a domestically-detained enemy combatant into federal court to stave off a likely defeat at the Supreme Court. President Bush decided that the Lackawanna Six should be apprehended by federal agents, not the Army. Our civilian law enforcement agencies and courts have adapted to the problem of terrorism just as they did to the Klan and the mob. What is appropriate on the battlefield is simply too much for downtown Buffalo.

David Rittgers is an attorney and decorated former Army Special Forces officer who served three tours in Afghanistan and is now a legal policy analyst at the Cato Institute.