Constitutional Law

National Security Courts Are Unnecessary, Dangerous

by Sharon Bradford Franklin, Senior Counsel, the Constitution Project

As recent news reports demonstrate, the incoming presidential administration faces pressure to support the creation of specialized national security courts. These courts would oversee criminal prosecutions of terrorist suspects, review and supervise a system of preventive detention for terrorist suspects, or both. Yielding to that pressure would be a mistake.

National security courts are unnecessary and pose a serious threat to constitutional rights. As the Constitution Project concluded in a white paper endorsed by a broad bipartisan group of experts, our traditional federal courts can meet the challenges posed by terrorism prosecutions.  Moreover, this consensus shows that the new administration and Congress should find broad support for resisting the pressure to establish national security courts.

Criminal Prosecutions Are Best Handled by Our Traditional Federal Courts

The call for specialized national security courts to handle criminal prosecutions of terrorist suspects is easy to reject. Traditional federal courts have withstood the tests of time and are fully competent to handle these prosecutions while protecting both national security and our constitutional safeguards.

A recent Human Rights First report, which examined more than 120 international terrorism cases over the past fifteen years, concluded that traditional federal courts tried these cases without sacrificing either national security or the defendants’ rights to a fair trial. The courts safely handled classified evidence, enforced the government’s Brady obligations to share exculpatory evidence with the accused, and provided a means to establish a chain of custody for physical evidence.

National security courts, by contrast, would erode the presumption of innocence and other constitutionally mandated criminal justice safeguards. Although some argue that lesser due process protections are acceptable because terrorists do not deserve full constitutional rights, what they fail to realize is that the very purpose of these trials is to determine whether or not these suspects are guilty of terrorist offenses.Specialized tribunals with lesser constitutional protections fundamentally undermine the presumption of innocence.

Most procedural safeguards followed by our traditional federal courts are constitutionally mandated. For example, the Fifth Amendment prevents the use of a coerced confession, and the Sixth Amendment provides for the right to confront witnesses. Specialized courts cannot circumvent these requirements. To the extent that existing rules are not constitutionally required, they can be modified within our traditional criminal justice system. A separate and unequal criminal justice system for a particular class of suspects would lack the legitimacy necessary for effective trials.

The only permissible exception to using federal courts for criminal prosecutions is for combatants captured on the battlefield and thus subject to traditional military jurisdiction. In this instance, our traditional military system — and not the Military Commissions Act — provides justice. National security courts have no role to play in criminal prosecutions.

Preventive Detention

The arguments in favor of national security courts to oversee a system of preventive detention for terrorism suspects are somewhat harder to refute, but only because of a mess of our own making. Here too, such courts are both unnecessary and dangerous.

On a “going forward” basis, preventive detention is unnecessary and unjustifiable. In our efforts to combat terrorism, apart from detention under the laws of war, we should only detain an individual suspected of a terrorism offense if: (1) the government can make a probable cause showing to a judge, and (2) the government intends to prosecute that individual (or, if appropriate, carry out an immigration removal proceeding).

Nor should we establish preventive detention for the “hard case”: a possibly non-existent group of highly dangerous Guantanamo detainees who cannot be prosecuted. The only evidence against these detainees is inadmissible because it was derived from coercive interrogations. 

We know that evidence obtained through coercion is inherently unreliable. We also know that even for this very small (or non-existent) category of detainees, the solution is careful evaluation of all options for handling each specific case — including repatriation to other countries and developing admissible evidence. What we should not do is establish a system of national security courts and preventive detention for these potential hard cases that we would not even be facing had we not allowed the coercive interrogations in the first place. We should not compound one mistake with another.

Our traditional federal courts have served us well for 230 years. We should not turn back the clock and abandon our fundamental rights.

The Constitution Project’s white paper, “A Critique of National Security Courts,” is available here.

Full post as published by ACS Blog on November 24, 2008 (boomark / email).