The Volokh Conspiracy

Anything's better than what we've got now, but I'm a little worried about the selection of the judges -- they're going to have a heckuva lot of discretion, and if they're stacked to be rubber-stamps for executive power, that would be bad. I would almost rather have them drawn at random from existing circuit-court judges.

Anderson,

While I respect you, whoever you are, and am always interested in what you have to say, you would have a much better chance of convincing centrists like me of your ideas if you would express yourself with more care and moderation ("Anything's better than what we've got now"? -- give me a break).

I think you'd need two levels of court review. First, the civilian courts would have to make the determination that the person can legally be subject to the alternative system.

Second, the civilian courts would have to be able to review the determination that the person is a terrorist/danger/whatever and therefore should continue to be incarcerated.

I agree with Good Democrat who I think is suggesting that fancy words like "sensible" "elite" and "specially trained" are a bit of a red flag that the proposal is a bit sketchy yet. Not that I have any expertise. I'm concerned about the court having its "own" defense lawyers. Does this work? I do generally like the Goldsmith/Katyal proposal, but Steve H's suggestion seems an improvement. ReaderY, whose interpretation of what provision of the Constitution prevents this set-up?

But I don't agree with Good Democrat or Tom Cross in their suggestion that bringing in another branch of government makes no difference. It makes a big difference. Balance of powers and all.

srg,
Most of the time you gotta pick between the plain-speakers and the hucksters. While maybe the former could dress up their points more prettily, it's still really YOUR job to find the truth/best policy/etc.

Three problems.

1) A clear lack of detail as to major substantive disputes, instead just asserting "bipartisanship"

2) The use of the word "terrorist" here simply distorts: The idea does not distinguish itself between "terrorists" such as McVeigh, the 1993 WTC bombers, and the Afghanistan battlefield capture. There is a huge difference in how we should treat them - the first two seem to relate to "criminal justice" with heightened concerns (and perhaps unrelated foreign policy consequences), and the third is more military in nature.

3) There is no explanation as to this court's jurisdiction and its limits. How do we know a particular defendant is correctly placed in this court?

srg, thanks for the kind words, but I do think that "anything's better than what we've got now" is idiomatically uncontroversial.

Shooting everyone at Gitmo would be worse, but if I'm taken to mean "anything within the realm of sanity," then how am I wrong? How much progress have we made with our Addingtonian parody of due process in SIX YEARS?

I'm sympathetic to Reader Y's concerns, very much so, but I see that Scott Horton is open to the Goldsmith-Katyal proposal, so I think it's worth considering; Horton is not one to shrug off human-rights concerns:

Of course, the English-speaking world has had some very unpleasant experiences with national security courts. The Founding Fathers were still acquainted with them and hated the memory. The trick here is to draw on that and more modern experience to assure that any new institution gives a high priority to justice alongside of state security. The Katyal-Goldsmith column builds sensibly towards a new first step.

ReaderY, whose interpretation of what provision of the Constitution prevents this set-up?

I'm not ReaderY, but I would venture to say SCOTUS's interpretations over the last couple centuries would. The idea that Congress and the White House can get together and by statute create a parallel criminal court system whose express purpose is to get convictions against people that would not be possible under normal judicial proceedings with full constitutional protections would appear to be pretty inconsistent with any traditional understanding of the purpose of the Constitution and Bill of Rights -- i.e., to prevent the elected branches from running roughshod over defendants' rights. (Note also that nowhere do Goldsmith and Katyal say this system would be limited to non-citizens or to people arrested overseas.)

Let's look at this from a practical perspective. A few Afghan fighters show up at a U.S. base near Kabul with a captive. They say "He's Al Qaeda, we caught him." He denies it. He's brought into the base and interrogated. Like a good terrorist (or like an innocent) he denies everything. The U.S. soldiers pass him on to one of these courts.

A battalion of Marines is raiding a neighborhood in Al-Anbar province. They come under fire and return fire, then advance as the enemy fire slackens. Someone runs away from them, they fire, he ducks, they run him down and subdue him, and find he was armed. At the conclusion of the mission they bring him to base. He claims he was running away from the firefight, and was armed for his own safety (but had no desire to challenge either insurgents or Marines). The Marines know nothing except he was near where they were shooting at and ran from them. They pass him on to one of these courts.

The court does what, exactly? How can some lawyers far from the battlefield ascertain the truth about either of these guys? There's zero reliable evidence. Either or both might be hardened al-Qaeda members, or extremely unlucky schmucks, and there's no way to even get more evidence.

I am interested in reasonable ideas, and impressed that Goldsmith and Katyal would collaborate on such a proposal.

At least many of the devils would be in the details, which are omitted from the op-ed. Precisely how, for example, would such a court "handle classified evidence in a sensible way?" And how would coerced interrogations and interrogators be treated?

One worry that comes to my mind immediately is the definition of scope and who gets to decide it, especially with respect to citizens, and even more especially within this country.

We citizens do, after all, start off with due process rights under the Constitution. When the government, making the first move, can seize one of us and declare us an enemy of the state as a fait accompli, and remove us from the ordinary criminal court system by default just by charging "terrorism," I wonder what the limits and safeguards are, and how the lines get drawn.

(These are some of the same worries I have about generalizing the Hamdi precedent to domestic spheres.)

Having stated that concern, I confess to a general interest in the Goldsmith-Katyal proposal.

There is merit in having Congress deal with such issues, which would entail reopening at least some of the matters that were rammed through by the waning 109th Congress in the form of the MCA. The 110th Congress would never enact that statute as-is, but cannot muster a majority to amend it. I fear that it would take a political miracle for the current Congress and Bush administration to reach a common ground. Perhaps the best thing to hope for is to make these issues visible in the political campaign already in progress, with legislation to follow in the 111th.

BTW, I wonder why this proposal is limited to preventive detention, and avoids the matter of trial by military commission. As I understand it, the plan would substitute the new courts in place of the CSRTs at Guantanamo, and the civilian-court review such as al-Marri got, with respect to preventive detention. But if the special court is to be created, why not also make it the venue for trials instead of military commissions?

I thought the point of Geneva was to address the difference between a soldier in uniform aka prisoner of war and a soldier hiding amongst civilians aka enemy combatant or terrorist as we call them today... What am I missing here?

Why is there a need for a new kangaroo-type court and less accountability? I'm with Ken - we've dealt with fifth-columnists and spies and all sorts of nasty scum without signing everything away, in the face of a nation far more powerful and malignant than what we face today.

If we worked harder on improving our FBI policework and CIA intelligence vs creating new Homeland extra-layer-of-red-tape agencies, then the problem is still quite approachable within our current framework. We did very little to clean up the act or budget of the existing structure, but quickly moved to create more big government mess.

We didn't need extra wiretaps or less FISA oversight to catch the 9-11 scum; we needed less red tape cluttering up the flow of the information we already had.

I fear that it would take a political miracle for the current Congress and Bush administration to reach a common ground.

Yah, without a Democratic president in 2009, this is just so much pony-wishing.

And I fully agree with those who reject any such court's jurisdiction over U.S. citizens; I would in fact have Congress overrule Hamdi to that extent. A U.S. citizen carrying arms against his own country, be it in Los Angeles or Tora Bora, should be charged with treason in U.S. district court. Period. If the feds don't wish to do that, then tough for the feds.

Thanks for the replies, Just Dropping By and Tom Cross. I take it the rulings of this court wouldn't be appealable in any normal fashion? I suppose I haven't figured this out well enough! But thanks!

If a terrorist suspect is captured on U.S. soil, then existing civil courts should be utilized. With respect to terrorist suspects on non-U.S. soil, we should take no prisoners and just execute them on the spot with a single gunshot to the back of the head (no interrogation, no questions). I am dead serious. The Jihadists have declared war on the United States and until this country starts prosecuting this war with deadly intent, the Jihadists will continue to view the United States as a paper tiger.

Gaius Marius,

Don't you even want to interrogate them first?

In all seriousness, this is a dumb idea because it would lose us all our allies in the fight against jihadists.

srg: Gracious. Yes, we could have kept EVERYONE we ever caught rotting for 6 years, instead of only hundreds of 'em.

Okay, I withdraw "anything's better than what we have now," while continuing to assert that what we have now is really, really lousy, for the reasons aforesaid.

Are we now in agreement?

Gaius Marius, thanks for visiting the future, and now your later career is easier to understand. Please go back into your time machine now, or we may have to shoot you in the back of the head, since you're a Roman citizen and not a U.S. citizen.

bittern: I take it the rulings of this court wouldn't be appealable in any normal fashion?

Me, I was imagining something like the FISA courts, with the theoretical potential for petition to SCOTUS. An unreviewable court should be unacceptable, for obvious reasons.

Oh, and I realize that people are nervous about applying this system to citizens. But the point of doing so is to make sure that our citizens are willing to support this system on the hypothesis that they might well find themselves subject to it.

Citizens should not be subject to any such court; as Anderson says (and I believe Stevens and Scalia did in hamdi or whatever case it was), with the few exceptions noted in the Constitution citizens must be tried in regular courts.

Beyond that, I agree that we need some system to deal with people who pose a greater threat than run of the mill criminals, and do not merit the respect warranted lawful combatants under the GC. The difference between AQ and spies like R Hansen is that the former may pose a much more immediate and lethal threat.

any system would have to be workable enough, btw, that the people on our side actually facing AQ don't decide that the easiest way is just to shoot the SOB once you're done with him, or to give him to someone who will.

It just occurred to me, from Prof. Kerr's post title, that the ideal would be for the accused terrorist to have to appear before Judge Wapner.

Perhaps he could be coaxed out of retirement?

Of the leading GOP candidates, declared or undeclared, I have a hard time envisioning anyone not running as champion of the party of Guantanamo, "enhanced" interrogation, etc. That is, assuming that McCain's chances continue to deteriorate.

Right, that's what I meant. And I'm not so sanguine about McCain's good will.

The difference between AQ and spies like R Hansen is that the former may pose a much more immediate and lethal threat.

I'm not sure I can agree that AQ is a more lethal threat than the USSR was.

Just a suggestion, but this is actually a relatively fresh topic as these things go, so perhaps it would be wise not to let trolls like Gaius dominate the conversation.

chris c,

As I understand the proposal, these would in fact be Article III courts, albeit of limited jurisdiction. They wouldn't be criminal courts, but as the authors and I have noted, the Supreme Court has already confirmed the constitutionality of various civil detention schemes. So, I don't see the constitutional barrier to having citizens subject to the jurisdiction of these courts.

Incidentally, our usual way of keeping our people from doing things like summarily executing detainees is to prosecute them for murder.

if you have any idea what percentage of prsioners in Guantanamo should not be there at all, and, if so, what you base your opinion on

srg, that is the problem: six years on, I don't know, and neither does anyone else.

ATR, I operate on the assumption that any blog poster or commenter who uses the name of a Roman general or historian can be safely ignored, or gently mocked. Hasn't failed me yet.

if you have any idea what percentage of prsioners in Guantanamo should not be there at all, and, if so, what you base your opinion on

Anderson already responded, but I'll add that it appears that roughly 50% of those incarcerated there at some point in time have been released or been found to have been wrongly accused. This seems to me to give a (not very encouraging) answer to your question.

Ken, I didn't mean to imply I thought AQ was a greater threat to us than the USSR was - I don't. But I do think AQ presents diff challenges, ones that cannot be deterred in the ways a state actor like the USSR could be. Also, the USSR gen proved willing to play by certain rules - again, AQ doesn't.

ATR Geek, people get shot (or handed off for such treatment) all the time in war zones and other areas off the grid without murder charges being brought. my point was only that if people in the field don't trust the system, they will work around it.

chris c,

You used the passive voice (people "get shot"), so I am not sure who you are claiming does this "all the time" without being charged. If it is American military personnel, I'd like to know your evidence. Indeed, the closest incident I know of to what you are describing is the Thar-Thar Canal incident (where American soldiers shot and killed three zip-tied detainees), and the four soldiers in question were charged with premeditated murder (the two which did the actual shooting pled guilty and got 18 years).

Of course, I obviously don't know how much of this has gone on without being discovered. But I do expect that American military personnel will usually follow their orders for the treatment of detainees, and be punished harshly if they decide on their own initiative to murder them instead.

Chris C. It amazes me that, with all the military experience our military has had, we still read of an enemy waving a white flag or otherwise signaling surrender, our guys standing up to gather them, and being shot or shot at.
I've heard of it in WW II and every war since, including the current unpleasantness(es).
It doesn't have to happen often before surrendering is an impossibility.
If we combine that with some kind of catch-and-release program obvious to the grunts, we may no longer have anything to discuss.
It is a frequent calumny to refer to those who support the WOT but are not currently serving as "chickenhawks". What would be the title for people who sought to make themselves feel better by taking such actions as would increase the likelihood of death for grunts by virtue of legalisms? "Chickenlawyers"? If you think a particular combination of laws regarding our enemies is just dandy, maybe you ought to take the same increased risks your hot idea imposes on the troops.

BTW, according to a May 3 article on released prisoners from Gitmo, some of them have rejoined the Jihadists and turned up on the battlefield -- again. So much for showing mercy to these prisoners.

if you have any idea what percentage of prsioners in Guantanamo should not be there at all, and, if so, what you base your opinion on

Anderson already responded, but I'll add that it appears that roughly 50% of those incarcerated there at some point in time have been released or been found to have been wrongly accused. This seems to me to give a (not very encouraging) answer to your question.

To assume that it means that there are more who shouldn't be at Gitmo assumes significantly more than the evidence would support. Rather, the evidence there proves merely what it says, that a certain number of Gitmo detainees have been released for any number of reasons, including that any information that they may have is now stale, that they are now deemed not to be of danger to us, etc.

Also, early on, a number of Gitmo detainees were released and showed up again on the battlefield in Afganistan, to be again recaptured or this time killed. This "catch and release" was deemed to be dangerous for our troops, and so the criteria for releasing detainees was raised a bit to prevent this.

What must be kept in mind is that the military has fairly strong incentives not to ship those captured to Gitmo. It costs a lot to ship them half way around the world, and then to maintain them there. And, in some cases, once at Gitmo, we are stuck with them, apparently indefinately, since no other countries with acceptable human rights records are willing to take them. Also, it has become a public relations detriment to the U.S. military and the Administration. So, the idea that a lot of the detainees are there because of being sold out by other tribes for the money, etc. ignores all this, plus the fact that after four or five years of this, our military has become fairly adept at interrogating prisoners and determining their intelligence and threat level.

Yes, I am sure that the self-appointed attorneys for some, if not many, of the detainees claim that their clients are innocent and shouldn't be there. But that could be said by the attorneys for most of the prisoners in our prisons here. We don't believe that for most of the prisoners in our prisons, and the military at Gitmo both has more reasons not to retain detainees that shouldn't be there, and typically has more actual information on the detainees than their attorneys do.

Finally, keep in mind that if Gitmo were to be shut down, the detainees there would have to go somewhere. Excluding those there only because there is no other place to send them, the remaining detainees are not going to be released, nor are they going to be brought to the U.S. They will be sent somewhere, because the military is not going to be willing to find the hard core jihadists again shooting at them in Afganistan. My guess is that most without intelligenc value would end up in Afgan custody, where their life expectancy may be a little shorter, and their style of living likely much harsher. After all, it is really the Afgan people whom most of the detainees transgressed against in the first place, and that is where most of them were captured.

Mr. Hayden, the recent spate of nope-nothing-wrong-here self-reports by the Pentagon, in the wake of Abu Ghraib, makes it legitimate to wonder whether your own suggestion has a touch of naivete about it. I think the judicial branch *has* to be involved.