[Jonathan Adler, July 17, 2007 at 10:14am] Trackbacks
McCarthy's "National Security Court" Proposal:

On NRO's The Corner, Andrew McCarthy, Director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, comments on the Goldsmith-Katyal proposal for a domestic terrorism court, and highlights his own proposal for a "National Security Court," outlined in this paper, and previously discussed here. As summarized by McCarthy:

The paper undertakes to analyze the history of, and problems with, treating terrorism as a criminal justice issue, as well as the difficulties of fitting its legal issues into the war paradigm. It proposes a hybrid: The creation of a new court that takes the best features of both systems, does not grant terrorists full constitutional rights, but has enough safeguards that other countries (in whose territories terrorists are likely to be apprehended in the future) would be more willing to extradite detainees to it than they have been to our present military system.

Related Posts (on one page):

  1. McCarthy's "National Security Court" Proposal:
  2. More on Terrorism Courts:
  3. The Terrorists' Court:
Houston Lawyer:
I have always thought that the primary reason that countries did not like to extradite these people to the United States was because we have the death penalty and they don't. From what I've seen, a fair number of European jurisdictions don't punish terrorism any harsher than we punish those who kill someone while driving under the influence.

I don't think a hybrid court is a horrible idea, but we shouldn't do it to impress the Euros.
7.17.2007 12:43pm
Just an Observer:
There is a lot to digest in Andy McCarthy's proposal. I note immediately two distinct differences between it and the less detailed proposal advanced by Goldsmith and Katyal:

1) McCarthy's "National Security Court" would not have jurisdiction over citizens. The court proposed by Goldsmith and Katyal would.

2) McCarthy proposes the new court essentially as a more generalized and permanent Article III substitute to military commissions for the trial of war- or terrorism-related offenses. For preventive detention, it essentially relies on military CSRTs such as those in place today in Guantanamo, with the new court's appellate division assuming the limited role now described for the D.C. Circuit. By contrast, Goldsmith and Katyal focus their proposal entirely on preventive detention procedures within a new court, with no mention of trials for offenses.
7.17.2007 12:52pm
Ugh (mail):

does not grant terrorists full constitutional rights


Is the determination that someone is a terrorist also subject to the limited-constituational rights tribunal?
7.17.2007 12:56pm
Oren (mail):
And, once again, supporters of these courts need to explain whether their system comports with the requirements* of the fifth and sixth amendments, or alternatively, why the 5A and 6A do not apply.

Until that basic question is answered I can see no sense whatsoever in debating the merits of a system that cannot possibly be implemented under this constitution.
7.17.2007 12:59pm
nedu (mail):
Ku Klux Klan: political party, criminals, or terrorists?

NAACP: political association, criminals, terrorists, or just black?

Protesters at the FTAA meeting in Miami: criminals, or anarchists hell-bent on destroying the city the same way they destroyed Seattle?

Protesters at the RNC meeting in New York: terrorists, criminals and democrats?

Organized labor: working class stiffs or wobblies?
7.17.2007 1:00pm
Anderson (mail) (www):
Nedu's points -- which are *not* merely snark, considering how a nation's enemies tend to be redefined as the enemies of its governing regime -- are another reason why U.S. citizens must be exempt from any "national security court."

Oren, the Fifth Amendment requires "due process of law," which can mean a great many things (tho not what we're currently extending to the prisoners at Gitmo); the Sixth addresses solely criminal prosecutions, which are not what's envisioned by the Goldsmith-Katyal proposition.

I do think that there needs to be a time limit on how long anyone can be held in this manner. After a year or two, we need to either put up (&charge the prisoner with a crime in a U.S. district court) or shut up (&deport the guy).

If we have good enough evidence to put him away indefinitely, but not to try him, then the fault lies with our methods of gathering evidence.
7.17.2007 3:18pm
Oren (mail):

Oren, the Fifth Amendment requires "due process of law," which can mean a great many things (tho not what we're currently extending to the prisoners at Gitmo); the Sixth addresses solely criminal prosecutions, which are not what's envisioned by the Goldsmith-Katyal proposition.


Playing semantic games does not change the substantive content of the proceedings - if you want to put someone in jail as a result, the proceeding is criminal.

To pretend otherwise is to give Congress carte blanche to create all manner of new proceedings, label them as non-criminal and then deny the defendants in these proceedings the rights that they deserve as free men.

I could imagine all sorts of creative "proceedings" that an imaginative Congress could institute.
7.17.2007 3:59pm
Ugh (mail):

Playing semantic games does not change the substantive content of the proceedings - if you want to put someone in jail as a result, the proceeding is criminal.


Sadly, SCOTUS disagrees. See Kansas v. Hendricks, summarized here.
7.17.2007 4:33pm
Oren (mail):
Perhaps what's needed is for Congress (or the states) to take the Kansas v. Hendricks at face value and start creating all manner of alternative "criminal" justice system without procedural safeguards for specific effects.

Let's start with a procedural method, akin to Hendrix, for civilly confining sitting supreme court justices and see how long that stands up.
7.17.2007 4:47pm
NatSecLawGuy:
One of McCarthy's cited rationals for departure from criminal law states: We must handle terrorism outside the context of criminal courts because, using Former Attorney General Barr's explanation, criminal courts are established to discipline an errant member of the body politic who has allegedly violated its rules. Accepting, for the time being, this boundary of criminal law, my question becomes: How do we treat international organized crime? How do we treat the drug importer in a foreign land? How do we treat the financier of terrorist organizations (or, for that matter, any financier involved in area that we are employing national defense forces to protect the nation)? If I understand McCarthy correctly, each of these groups should fall under the national security court context and not the criminal law context.

Much more work needs to be lended to what is applicable to be heard in front of a National Security Court, before we go to far to consider what rights should be extended to those before it. This goes much further beyond the basic statement of US citizens will be or won't be included.

Further, telling me, "duh, terrorist cases" is an insufficient answer in my opinion, unless you can give me an exclusive list as to what those are and get five academics to agree with you.
7.17.2007 5:23pm