National Security Courts and Preventive Detention: A Bad and Unnecessary Idea

JURIST Special Guest Columnists Representatives David Skaggs (D-CO) (1987-1999) and Mickey Edwards (R-OK) (1977-1993), members of the Constitution Project's Liberty and Security Committee, say that despite the Obama administration's welcome new approach to handling terrorism cases, the US government could still use proposed "national security courts" to short-circuit constitutional guarantees and permanently detain individuals it deems dangerous...



President Barack Obama has changed course in how we handle terrorism cases, and we commend his leadership. His executive orders requiring the government to close Guantanamo within a year, comply with the Geneva conventions, and halt prosecutions by military commissions are hallmarks of that change.

Even so, the orders still allow for the legalization of the Bush administration's policy of "preventive detention" and for trials lacking full constitutional safeguards. Proposals linger in Washington that would establish "national security courts" to supervise a new preventive detention system or to try terrorism suspects. We focus here on the threats posed by preventive detention.

The proposed national security courts would oversee detainees whom the government may claim cannot be released, sent to another country, or prosecuted in regular federal courts. Without ever being required to prove its case, the government could use these courts to short-circuit constitutional guarantees and permanently detain individuals it deems dangerous.

Let's not overlook the fact that the federal criminal justice system provides all the tools necessary for effective and fair terrorism prosecution and for detention within well-developed, constitutional boundaries. The government can prosecute citizens and non-citizens alike in federal courts under far-reaching laws that criminalize support for terrorism, wherever and however it may happen.

National security court proponents claim the government needs a new tool for those it "knows" are terrorists but cannot prosecute because evidence may be inadmissible as obtained through illegal means, such as torture. Or, they fear that trials will disclose important intelligence information.

First, the new administration should question the extent to which the prior administration knew all it claimed to know. A core part of our adversarial system of determining truth through full due process is putting the government to its proof. Our experience over the last eight years counsels against deferring to claims by the President or the intelligence agencies that they have "solid" information that justifies preventive detention.

Second, the proper response to concerns about how to handle these difficult cases ought to be for the government either to develop admissible evidence or to send the detainees to the countries where they were seized or where they may be given due process. We should not detain anyone indefinitely without providing him a full and fair opportunity to defend himself. Already more than 500 of the men held at Guantanamo Bay have been determined not to be enemy combatants and were released to other countries. In the few pending Guantanamo cases that have gone to habeas corpus hearings, the courts have ordered nearly two dozen people released.

Third, let's not get distracted by the straw man argument about "protecting sensitive intelligence." The federal courts have an excellent record of handling classified material. Indeed, the only leaks of classified information over the last 15 years, in more than a hundred international terrorism prosecutions, came from the executive branch, not federal criminal courts.

Finally, we support punishing terrorists as severely as the law allows after a federal court holding a criminal trial finds them guilty. We agree that our Constitution and longstanding laws permit suspects properly charged with a crime to be imprisoned awaiting trial. What we cannot support, however, is the indefinite imprisonment of a person never charged with a criminal act, even if some new national security court were to "authorize" such detention.

We and our colleagues on a bipartisan task force convened by the Constitution Project, which includes some of the nation's leading legal and policy experts, question how any system of preventive detention, however supervised, can be reconciled with the Constitution's basic guarantees of due process and the fundamental human rights central to who we are as a people. As the President advised in his inaugural address, "we reject as false the choice between our safety and our ideals."

It is basic to American law that detention can only be permitted when government provides an accused the right to defend himself, to challenge the evidence, and to put the government to its proof in a court of law. It is what the Constitution demands. America is indeed exceptional, and this is a critical part of what makes us so.


The Honorable David Skaggs (D-CO) represented Colorado's Second Congressional District from 1987 to 1999. During this time he served as Chairman of the Democratic Study Group and co-founded the congressional Constitutional Forum series. He has served as Executive Director of the Center for Democracy and Citizenship at the Council for Excellence in Government, and currently serves as Executive Director of the Colorado Department of Higher Education. He is a member of the Constitution Project's Liberty and Security Committee.

The Honorable Mickey Edwards (R-OK) represented Oklahoma's Fifth Congressional District from 1977 to 1993. During this time he served as chairman of the House Republican Policy Committee, the party's fourth-ranking leadership position. He is a founding member of the Constitution Project's Board of Directors, lecturer at Princeton University's Woodrow Wilson School of Public and International Affairs, and author of RECLAIMING CONSERVATISM (2008). He is a member of the Constitution Project's Liberty and Security Committee.

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