The Case against National Security Courts
Abstract
Since September 11, calls for a hybrid national security court to handle special terrorism cases have taken on a new-found prominence, as courts and policymakers alike have struggled with the complex series of legal and logistical problems posed by the U.S. government's detention of enemy combatants, especially the hundreds of non-citizens so detained at Guantanamo Bay, Cuba. National security courts are, for many, an increasingly attractive compromise solution to the seemingly irreconcilable division between those who believe that terrorism suspects are not entitled to the traditional criminal process and those who believe not only that they are, but that any other system is categorically unconstitutional. And in the aftermath of the Supreme Court's landmark decision in Boumediene this June, holding that the Guantanamo detainees have a constitutional right to petition the federal courts for writs of habeas corpus, such a compromise solution has become all the more appealing, given both the judicial review that Supreme Court's decision mandates and the complexity of the issues that it nevertheless leaves unresolved.
As popular as such proposals have been, though, there has been little sustained discussion of their details - which have seldom been fleshed out. Even with respect to those calls for national security courts including some discussion of the specifics, the proposals vary widely both substantively and procedurally. For example, some proponents have called for national security courts for detention decisions - i.e., to review whether a particular terrorism suspect can be held as an enemy combatant without criminal charges. Others have called for such tribunals as a forum in which to criminally prosecute suspected terrorists - i.e., as an alternative either to the traditional Article III criminal process or to trial by military commission pursuant to the controversial Military Commissions Act of 2006. Whatever the merits of each individual proposal, little has been written about the broader implications of such a third way.
In the paper that follows, I attempt to provide a comprehensive introduction to the various proposals for a national security court and to both their pros and their cons. Ultimately, I argue that proposals for national security courts are dangerously myopic proxies for larger debates that must be resolved first, including, most prominently, the debate over the extent to which the government should be able to detain terrorism suspects without trial, and the equally significant definitional question of just who qualifies as such an individual. Until and unless meaningful progress is made on these issues, calls for national security courts are little more than form without substance.