JURIST Guest Columnist Glenn Sulmasy, a professor of law at the US Coast Guard Academy, says it's time for US military commissions to evolve and morph into a national security court appropriate to handle the international jihadist threat…

The Global War on Terror has created ambiguities in both the laws of armed conflict and how best to fight the new war of the 21st century. The asymmetric threat of terrorism itself, no defined nation state to fight against, the relative problems with the Military Commissions in Guantanamo Bay (GITMO), allegations of torture and the recent constitutional issues surrounding wiretap efforts of the National Security Agency all highlight the lack of appropriate laws to govern this new conflict. Nowhere is this ambiguity more evident than in the United States’ handling of detainees.

The “enemies” in the Global War on Terror (GWOT) are men and women who fight not for nation but for ideology, do not wear standard uniforms and, as doctrine, flout the laws of war. These new “warriors” have created extreme difficulties since they are not, de jure belli, prisoners of war and thus the Geneva Conventions simply do not apply to them. Adjudicating their status and crimes has become increasingly chaotic. It initially appeared, relying in large part on Ex Parte Quirin [1], that the military tribunals (currently referred to as military commissions by the Bush Administration) would provide the appropriate venue for handling the prosecution of the detainees. I would concur this was appropriate assertion — particularly when viewed through a post 9/11 lens. But now, over four years later, there has not been a completed prosecution. Over 500 detainees remain in Guantanamo Bay and allegedly another 450 are reportedly are being held in Afghanistan. National consensus and international support of the Commissions has eroded significantly — most notably over the past two years.

As this problem escalates, a new approach must be entertained. This is a new war, one that mixes law enforcement and warfare, and does not fit neatly in either regime. The Bush administration and Congress have adapted U.S. resources strategically, tactically and militarily to meet the new threat. They enacted the USA PATRIOT ACT, conducted the largest reorganization of government since 1948 by creating the Department of Homeland Security (merging 177,000 employees and over 22 agencies), and created a flexible new foreign policy embodied by the National Security Strategy of the United States in 2002 (recently re-released and reaffirmed in 2006). They were, and remain, conscious that this is a new type of war requiring new policies. Ironically, there have been no changes in how we handle the new enemy “warriors” of the GWOT once captured. It is now time for the military commissions to evolve and morph into a court appropriate to handle the international jihadist threat. The formation of national security courts seems a logical solution to the ongoing threat posed by international terror.

In cooperation and concert with an updated Foreign Intelligence Surveillance Act (FISA), a national security court apparatus needs to be statutorily created. The detainee issue will not be resolved soon, nor will the Global War on Terror end in the foreseeable future. Policy makers must achieve both the reality and appearance of justice for the short and long term. Clearly, many issues need to be hammered out in regards to court composition. The current thrust should simply be to inject new ideas into the national debate over the proper handling of detainees. In that vein, I humbly offer fundamental guidelines for a National Security Court:

1. Article I judges with law of armed conflict expertise. The courts would be led by judges, appointed by the President, who are experts in the law of armed conflict and have some background in national security law. These Article I judges should possess the educational background necessary to determine the lawfulness of intelligence gathering, terrorist surveillance, etc. Several scholars, advocating against judicial intervention in the war, correctly note that those who are making such decisions now are not necessarily versed in this unique area of the law [2]. Whether you agree or disagree, the nature of this war seems to necessitate judicial intervention more than has been customary, in previous U. S. military operations and wartime. As it stands now, the existing systems (the FISA court and Article III federal courts) permit judges who have no background in warfare or national security to intervene, conduct hearings and decide on cases and issue warrants. Unfortunately, such actions are beyond the scope of their scholarship or expertise [3]. The complex threat we now face demands specialty courts staffed by appropriate personnel.
2. Prosecutors — Five dedicated prosecutors, assigned by the Department of Justice (DoJ) would represent the government and exercise prosecutorial discretion on whether or not to proceed in cases. Oversight would be conducted by the Chief, Criminal Division of DoJ [4]. The powers of these prosecutors, as currently exists in other democratic, E.U. nations, would be great. However, these prosecutors would still operate under the ethical rules standard for all US government attorneys.
3. Specified and Qualified Defense Counsel(s) — Judge advocates would serve as the government-provided defense counsel. This group would be similar to what has been provided for the detainees in the military commissions. The judge advocates would be assigned from the Department of Homeland Security [5] and the Department of Defense. Initially, a pool of ten judge advocates would serve on the defense teams. As an option, the jihadist could employ, at his own expense, civilian counsel so long as such counsel have requisite classified document clearance(s).
4. Trials Proceedings would be closed – As a result of the sensitive nature of intelligence gathering and specialized methods employed — as well as ensuring such hearings do not become propaganda tools for the enemy – the trials would be closed to the public. One need look no further than the World Trade Center bombings in 1993 and the recent Moussaoui case [6] to see the heightened need for such hearings to be closed to the media and public audiences. However, qualified representatives from designated NGO’s and the United Nations would be permitted to attend as “observers” to ensure trial fairness and witness the procedural protections expected of a nation dedicated to upholding the rule of law.
5. Trials Held on Military Bases within the Continental U. S. — This would keep the detainees held in a location that is secure, like Gitmo, but located within the United States on one of our military bases. This would, in part, alleviate some of the international concerns about the detention centers located in Gitmo. Since Eisentrager has been essentially overruled by recent cases [7], the extraterritoriality needs are no longer applicable and, in essence, are moot [8].
6. Convicted Defendants Imprisoned at Military Brigs — If convicted and sentenced to jail time, military brigs are by far and away not only the best but also the right place to imprison those convicted by the National Security Courts. This is the most secure place to imprison such illegal combatants and affords the same protection against abuse given to those U. S. service members who are trie
   d, convicted and sentenced under the UCMJ by courts-martial.

7. Appropriate Appellate Rights — Consistent with the theme of the National Security Courts being a military-civil hybrid, appeals would go through the Courts of Appeals of the Armed Forces (CAAF) [9]. This limited right of appeal would ensure these cases were heard by an outside panel of judges versed in military law and the laws of war, as well as have some background in the procedural nuances of national security law. Appellate counsel would be provided by experienced Air Force, Coast Guard, Navy-Marine Corps, and Army appellate attorneys.
8. Death Penalty – The death penalty would still be an authorized punishment as it currently still is under certain UCMJ offenses (and the commissions) a possibility for convicted military members. This penalty would only be authorized in those cases deemed egrigous enough and ones that severely impact the homeland security of the United States. Certain aggravating factors would have to be codified to distinguish between what offenses are appropriate for life sentence or those better suited to capital punishment. Cognizant this would still cause concern among our European and certain other international colleagues, this proposal must undergo intense scrutiny prior to implementation.

The Global War on Terror has introduced ambiguity in the choice of the appropriate legal regime best suited to comport with the law of armed conflict and satisfy customary international legal obligations. Of the myriad new issues and legal problems confronting policy makers in the West, the most problematic has been the proper handling of jihadists once captured. The Gitmo “distraction” is impacting our ability to effectively lead the world in other areas of national security. International concern over Gitmo is detracting from our ability to provide guidance, counsel and policy in this and other arenas. Regardless of blame or why this has occurred, the United States needs to take a fresh look at how best to deal with detainees, the proper adjudication of detainees in Guantanamo Bay now, and for those detainees yet to come, as they surely will. A blue ribbon commission, created by the President, should immediately be employed to look at the possibilities of creating a national security court system which will address questions as to proper detention, adjudication, intelligence gathering, terrorist surveillance and other such legal issues associated with the threat of international terror. The National Security Court, an evolution of the military commissions, affords an opportunity for U.S. policy makers to respond forcefully and effectively to calls, both domestically and internationally, for a way out of the Guantanamo issue. The time is now for the United States to once again be viewed as the “shining city on the hill,” a vision so eloquently defined by President Reagan. It is time to regain the initiative, and reaffirm our leadership in the humane prosecution of those who would undermine the ideals of democracy.

Notes

1. Ex Parte Quirin, 317 U.S. 1, 28 (1942).

2. See, John C. Yoo, Courts at War, 91 Cornell L. Rev. 573 (2005).

3. Military Deference Doctrine outlined in cases dealing with warfare, modes of warfare and conduct during warfare.

4. Roughly analogous to the powers of prosecutors for terrorist cases in France, GB and even the ICC.

5. See Homeland Security Act of 2002, Pub L. No. 107-296, 116 Stat. 2135. The U. S. Coast Guard moved under the Dept of Homeland Security.

6. See David B. Rivkin Jr., and Lee A. Casey, A Recipe for Disaster, Wall Street Journal Online, March 17, 2006 and Glenn Sulmasy, Take Mossaoui to Court, A Military Court, Foxnews.com, July 2003

7. See, note 21, 22.

8. It appears the concept of ensuring no access to Federal courts when held outside of US, or extraterritoriality, is no longer a legitimate policy to employ; See Steven C. Welsh, Supreme Court Guantanamo Decision, June 30, 2004 available at http://www.cdi.org/news/law/gtmo-sct-decision.cfm

9. The Court of Appeal of the Armed Forces (CAAF) is the intermediate appellate court for all military law cases. The CAAF is currently employed as a civilian “check” over the military justice program and the level of review before access to the Supreme Court. Many judges on the court have either experience in national security or the law of armed conflict. This skill set seems most apropos for a judicial check on surveillance and other activities now necessary to effectively fight the jihadist threat of international terror.

Glenn Sulmasy is an associate professor of law at the U. S. Coast Guard Academy and an expert in national security law. The views expressed herein are his own.
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