JURIST Guest Columnist Glenn Sulmasy, a professor of law at the US Coast Guard Academy who made the case for a US national security court on JURIST a year before a recent op-ed backing the proposal ran in the New York Times, says that implementing a new court system will provide new opportunities for success in the war on terrorism…

As Congress and the current administration struggle over how to proceed with the detention and adjudication of alleged jihadists imprisoned at Guantanamo, increased attention is being paid to the creation of a hybrid court to best meet the needs of policy makers, the Department of Defense, U. S. citizens, our allies and the detainees themselves. Resolution of these concerns is increasingly important as the United States continues its war against al Qaeda.

Recently, both sides of the debate have become entrenched in two paradigms regarding the future of GTMO: 1) Factions in Congress want to gut the Military Commissions Act (MCA) and use the U.S. federal criminal system to try the alleged international terrorists and 2) Some in the administration and many conservatives want to preserve the original military commission process or the MCA and not change the existing structure. The reality is that both sides are right; yet both sides are wrong. As I have previously written in JURIST and elsewhere, the real answer, and most viable long term solution, is the creation of a national terrorist court system — similar to the FISA court.

This new national terrorist court could be created as part of an update to the FISA and its system. FISA is outdated and antiquated as it was written in 1978 to address the conventional threat of the Soviet Union during the Cold War and can not confront the realities of the wars of the 21st century which mix law enforcement and warfare. This type of war against international terrorism we are engaging in is new — and so is the ability for non-state actors to engage in sustained warfare against nation-states (with the capability to inflict massive damage including the use of WMD). We must break away from three-decade-old paradigms and move forward to meet the new challenges of 21st century warfare. Updating FISA and implementing a new court system will provide new opportunities for success.

Guantanamo and the military commissions, historically effective and arguably lawful and in line with 20th Century Supreme Court precedent, have now become the focus of mounting criticism. Although much of this criticism is often unfounded and without merit, it has de facto hampered our ability to be a leader in human rights issues worldwide. The negative international reaction has hindered the exertion of our leadership in so many other areas where the world expects, and needs, U. S. assistance, resources and moral influence. Since the war we are fighting is itself a hybrid, it is critical for policy makers to create a compromise out of the existing positions and consider a new court system as part of the debate. A National Security Court (or Homeland Security Court) offers a system that will be permanent, balances the requirements of law and the successful prosecution of war, addresses human rights concerns, and permits the United States to focus on winning the war against al Qaeda. Like the enemy and this “new” war, it would be a blend, taking the most relevant aspects of both our federal criminal system and the military commissions. Briefly, the proposed court would include standing federal judges learned in intelligence law and the law of armed conflict, ensure the detention and trials for citizens and non-citizens could be conducted at military bases within the United States, provide military judge advocates as detainee defense counsel, and have the program run by the Department of Justice to ensure civilian oversight.

It is important to note that others are now agreeing that this new, proposed system is worthy of consideration for policy makers struggling with what to do with these “warriors” or jihadists. Andy McCarthy, senior fellow at the Foundation for the Defense of Democracies has written (in the National Review and elsewhere) and spoken extensively on the need for this new type of court. Columnist Stuart Taylor, Jr. of the National Journal has written at least two pieces calling for these new courts, and recently, Professors Jack Goldsmith and Neal Katyal have written a New York Times op-ed declaring some form of a national security court is the best means to move the nation forward.

However, the creation of a National Security Court is not a course change or repudiation of what has been legally done for the past six years. Additionally, these new courts should not be perceived as a victory for al Qaeda propaganda. Rather, the new national security courts would be an evolution of the existing processes used for trying illegal combatants in times of war. Warfare has changed, the enemy is different from those in the past, the means and methods to conduct warfare has changed radically, and now our system for detaining and trying these illegal belligerents needs to adapt to these new realities. The enemy is unique in that they represent no nation-state or flag, but are instead warriors of an ideology. The situation demands consideration must be given to morph the military commissions into “hybrid” national security courts. Washington policy makers need to inject fresh ideas such as this new court system into their deliberations as the nation continues to fight al Qaeda around the world.

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