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: