There is a particularly thoughtful article by Thomas Powers in the current Weekly Standard (Due Process for Terrorists? The case for a federal terrorism court) that’s not what you’d expect. Powers contends that the Bush Administration should take the initiative to protect both the national security and the due process rights of detainees by proposing to Congress that it establish a new federal court in which to try accused terrorists. Though the author is clearly sympathetic to the claims that terrorism presents legal challenges that cannot be dealt adequately with in federal civilian courts, he also is skeptical of the effectiveness of military tribunals. In addition, he criticizes the Bush administration’s passivity in response to criticism and court challenges, some of which are valid, and challenges the administration to protect the rights of the innocent–whether innocent victims of terror or those innocent of terrorist activities.
. . . .INSTITUTIONAL REFORMS are needed to resolve these questions and signal clearly to Americans and a watching world that due process, even for terror suspects, matters to our government. Extraordinary measures presented as matters of executive authority, or justified in the name of security, have been tolerable during a period of adaptation to the new era, but they will fail in the long run. Leaving it to the Supreme Court to force the government to act, meanwhile, is a poor substitute for a forward-looking and forthright effort to face our unprecedented situation squarely and in a way consistent with the principles of the U.S. Constitution.
To deal with terrorism cases that could be handled under the ordinary criminal law (as were, for example, the 1993 World Trade Center bombing, the Oklahoma City federal building bombing, and the case of Zacarias Moussaoui), Congress should create a new specialized court. This terrorism court would incorporate special security measures, protect the secrecy of sensitive information and sources, and make provision in its evidentiary rules for the peculiar situations arising from operations on a battlefield or its equivalent. Terror suspects should know the charges against them, have access to attorneys (specially trained, with the proper security clearances), and enjoy a right of appeal. To ensure independence from executive branch influence, federal judges with lifetime appointments should fill the bench. A terrorism court would provide a framework for the emergence of a body of precedent and the development of a cadre of specially trained expert judges and lawyers. . . .
As I said, this article is unusually thoughtful and presents a proposal well worth considering seriously.