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More on Terrorism Courts:

The Goldsmith-Katyal proposal for a "National Security Court" that could authorize preventative detention has provoked an extensive debate in the comments to this post at Opinio Juris. At Is That Legal? Eric Muller thinks the proposal "has a lot going for it," but is surprised that Goldsmith and Katyal would propose authorizing the preventative detention of U.S. citizens on the basis of simple group membership.

The idea of a domestic terror court is also advocated by my former colleague Amos Guiora. He discusses the idea here, and it's covered in the L.A. Times here.

[NOTE: I revised this post so as to more accurately portray Eric Muller's thoughts on the GOldsmith-Katyal proposal.]

UPDATE: Amos Guiora expands on his domestic terror court proposal here.

Oren (mail):
Can anyone in favor of such a policy honestly square it with the stringent requirements of the 5A &6A? Do you even feel the need to?
7.14.2007 10:59am
Eric Muller (www):
Jonathan, I very much appreciate the link. My concern, however, is significantly more narrow than what you describe. My concern is not that the Goldsmith/Katyal proposal contemplates preventive detention, but that the proposal extends to the preventive detention of U.S. citizens on the basis of nothing more than proof of membership in a group. That is the piece of the proposal that struck me as a really, really bad idea, no matter whether the court's judges are military officials or life-tenured federal judges.
7.14.2007 1:18pm
Anderson (mail) (www):
Would Prof. Muller allow such preventive detention of U.S. citizens on any other basis?

I still draw the line at U.S. citizens, who should either be prosecuted or else put under legitimate surveillance unless/until there's a basis for prosecution.
7.14.2007 2:12pm
scote (mail):
I have a hard time supporting a new "Bill of Rights Lite" court that applies to US Citizens and domestic crimes.

The Supreme Court has recognized that the president can detain traditional enemy combatants during wartime. The court has also long approved preventive detention for people who are dangerous to society — the insane, child molesters, people with infectious diseases, and the like — but who have not committed crimes.
7.14.2007 2:48pm
scote (mail):
Opps, I accidentally hit post while I was composing.

Anyways, from the GOLDSMITH / KATYAL Op Ed:

Detainees, however, need not be given the full panoply of criminal protections. A detainee may not be able to meet his lawyer right away, particularly if interrogation has just begun.

"Terror Court" is another example where people are proposing that civil rights should be inversely proportional to the severity of the accusation. I really have a hard time with that idea, in part because in encourages the government to make the broadest possible accusations to invoke a reduced set of Constitutional Rights. Seems like a fabulous recipe for disaster to me.
7.14.2007 2:54pm
Adam J:
I'm not I understand how this would work. Would an individual be subject to preventative detention simply because a person is "affiliated" with AQ or another terrorist group? What constitutes "affiliated"- I'm a commentor on Volokh's conspiracy- would that be affiliation? I certainly don't agree with Prof. Volokh on most things- why should we think those that affiliate with terrorists do? What if there's individuals within AQ that are trying to change the group from the inside. They could be affiliated yet advocating to have the group stop terrorism- yet we could hold them for "affiliation".
We never jailed communists simply for being communists during the cold war.
If there's no proof that a person was intending to commit a crime (otherwise we could presumably charge them- or at least surveil them until we gather more proof), how can we be sure we are even preventing anything? And when does preventative detention end? When we decide they have been "cured" of their desire to associate with the wrong people? How does anyone figure that out? Or do we just hold them until we decide the "war on terrorism" is over?That could be a long long time to hold someone for "association".
7.14.2007 3:16pm
nedu (mail):
Sometime in our history, America just needs to experience, “The Court of the Stars and Stripes Chamber.”
7.14.2007 3:25pm
Just Dropping By (mail):
We never jailed communists simply for being communists during the cold war.

Actually, that's not entirely true. In the original "Red Scare" (1917-20) several thousand people were arrested primarily based on their membership in various sorts of socialist groups: http://en.wikipedia.org/wiki/Red_Scare

I'll emphasize that I don't agree with preventive detentions based on group membership, but I still thought it bore mentioning.
7.14.2007 3:33pm
Adam J:
Just Dropping By- Good point. However, that was why I limited example to during the cold war.
7.14.2007 3:41pm
K:
I think the Constitution gives the SCUSA jurisdiction over all courts. That would include these. But maybe I'm wrong, conlaw is what it is.

Otherwise I don't see that security courts wouldn't make sense. We have specialty courts for taxes, bankruptcy, etc. In fact I think it might be good simply to simplify, clarify, and unify procedures. District courts probably aren't the best place for security matters.

As for the powers given such a court. Well, we all want rights. Yet history shows civil rights are abridged when threats or dangers are sufficiently high. The question is always how high is 'high'.
7.14.2007 3:48pm
nedu (mail):
It wouldn't be America without music....

Let's not just have a shabby "All Rise" for this court—no, we need more than that for the Honorable Judges of the Court of the Stars and Stripes Chamber...

Here's a John Philip Sousa march just made to order for this glorious and historical American court. It's their natural theme music [Real Audio] [more formats].
7.14.2007 4:15pm
Just an Observer:
I, too, am queasy about the Goldsmith-Katyal proposal's treatment of citizens.

Just to keep things in perspective, remember that those running our government interpret current Supreme Court precedent to mean that U.S. citizens in this country -- even with habeas review -- already could be detained as "enemy combatants" with fewer procedural protections than those afforded to Guantanamo detainees today.
7.14.2007 4:45pm
Richard Aubrey (mail):
As Lincoln once said, we must think anew.

That was in the context of circumstances few had foreseen or thought about. Much less prepared for.

What we have now is different. I suggest we have few institutions whose structure was designed, either accidentally or deliberately, to deal with the current problem, which I don't have to elaborate.

I give people credit for trying to think of new solutions. Safeguards are important, and those who, in other circumstances sneer at the concept of the slippery slope are Viewing with Alarm, and may even be correct.

We have enough trouble--see Boston, Bulger, FBI, and informants--with the difficulties of keeping some kinds of investigations secret. How much more when the attorneys are likely to be funded by Saudi Arabia and casting their requests for discovery as widely as possible? Before anybody gets all faux outraged at this slur on attorneys, tell me Lynn Stewart was sui generis. Yeah, yeah, I know, she wasn't funded by SA, that anybody has shown. It's the thought that counts.

We have the probability of lawfare. How's the suit by the non-flying imams against those who may have alerted the cabin crew doing? Check out Janice Barton for free speech. It took a good deal out of her family to get the thing reversed by the Sixth Circuit.

I know, I know. Nobody is ever chilled by the thought of having to bankrupt himself to beat a frivolous lawsuit, and the concept of using that as a club never occurred to anybody. I know.

We have different circumstances and the insistence that no new arrangements are necessary or allowable is silly. I don't know what the answer is, but I wouldn't be interested in shutting down the discussion.
7.14.2007 4:56pm
Greedy Clerk (mail):
I think the Constitution gives the SCUSA jurisdiction over all courts.

Uhhh, no it doesn't. The Supreme Court has no jurisdiction over state courts on correction of issues of state law -- its only "jurisdiction" in such a circumstance is to recognize it has no jurisdiction to correct errors of state law committed by state courts. Furthermore and more fundamentally, Congress clearly has the power to limit the jurisdiction of the Supreme Court on issues of federal law, and has done so quite consistently since 1789 in the first Judiciary Act. (A recent example is that under AEDPA the Supreme Court has no jurisdiction to review denials by Circuit Courts of petitions to bring successive habeas petitions.)
7.14.2007 6:20pm
Oren (mail):
Greedy Clerk - NAACP vs. Patterson and NAACP vs. Alabama discredit that theory. The SCOTUS took it upon themselves in those cases to correct egregious errors in the ALSC's application of Alabama law.

There were a few more civil rights era cases in that vein.
7.14.2007 7:04pm
K:
Greedy: You are right. The SC can be denied appellant jurisdiction by Congress. I should have checked first.

That seems to conflict a little with the phrasing that other courts are inferior to the SC. But some people spend lifetimes arguing about these matters; I am not one of them.

So the proposed security courts could operate independently of the SC if Congress so decided?
7.14.2007 8:21pm
Greedy Clerk (mail):
Oren, you are incorrect. In those cases, the Supreme Court found federal constitutional violations in the manner in which state laws were interpreted/reinterpreted by state courts. Huge difference between just correcting errors of state law.
7.14.2007 8:51pm
PersonFromPorlock:
I suspect the answer to this and other calls for finessing the Constitution in the WOT is brutally simple: if it's a choice between public safety and keeping to the Constitution, we must keep to the Constitution and endure the harm that doing so lets the enemy inflict on us while we destroy him; and we must destroy him.
7.14.2007 9:03pm
Richard Aubrey (mail):
Porlock. Good idea. Think we can get a political consensus in that direction?
Me either.
7.14.2007 11:11pm
PersonFromPorlock:
RA:

Sigh. Yeah, I know. But the American soldier's oath is to defend the Constitution and 'working around' constitutional limitations is a pretty fundamental violation of that oath. And we're all soldiers in this war, or so we're told.

What's needed isn't "political consensus" but political leadership to remind us of our duty, and especially to remind the government of its duty. The personal safety of any or all of us isn't even in it.
7.15.2007 3:58am
Richard Aubrey (mail):
Porlock.
To be more precise, do you think we could get a political consensus to destroy our enemies?
I don't mean the Bush administration.
I mean the ones who, in a real world, would fall under the definition of enemies.
7.15.2007 9:08am
PersonFromPorlock:
RA:

I suspect that in the 'real world' of Washington there are no enemies, just people we've managed to offend. So the consensus -- or at least the majority position -- is for apologies, restitution and huggies all around.

But destroy our attackers? That would require taking seriously the notion that some people can't be bought, something a culture of manipulators is ill equipped to do. We will destroy our own institutions first, in an ill-considered attempt to control terrorist 'excesses' while they learn to love us, without ever considering that those 'excesses' are their essence.

So the answer to your question "do you think we could get a political consensus to destroy our enemies? " is "as of now, no." But things change and a fresh terrorist attack in the US, of undeniable viciousness, might even get around our political class's blinders.
7.15.2007 11:51am
Kevin P. (mail):
This is a bad idea. A National Security Court created today to fight Islamic terrorists will one day be used by a different administration to fight a different group.

One obvious example that comes to mind is gun owners.
7.15.2007 12:49pm
Anderson (mail) (www):
Person from Porlock: When you say "destroy our enemies," do you have our enemies' exact identities and locations in mind? I'm sure the Pentagon would appreciate your forwarding that data.

Terrorists are like guerillas in the difficulty of pinpointing them -- that is the whole point of guerilla warfare. I can well imagine Napoleon hand-waving in Paris about how his generals in Spain simply needed to "destroy the enemy." Easier said than done.

What you may mistake for a lack of political consensus is actually a matter of military intelligence -- unless you are of the "nuke Karachi to kill the two dozen or so terrorists therein" persuasion, in which case please so state.
7.15.2007 12:52pm
Richard Aubrey (mail):
Anderson.
Our military can destroy enemies a hundred miles into space, five miles under the ocean. Enemies can be destroyed behind hills, under forest canopies, in ravines and city alleys.
The only remaining place to hide is among civilians, and that's only because we hobble ourselves. It wouldn't work against the Russians, or the Indians, or the Chinese, or many of the ME nations or African nations.

So we need to either be prepared to destroy any number of innocent civilians or to find the individual terrs amongst them.

Nobody wants to do the first, and the chattering classes are against the ssecond.

As Porlock points out, by implication and explicitly, the first will happen if we fail in the second.

Now, far be it from me to suggest the chattering classes want to hobble us in the second and continue to insist we hobble ourselves in the first in order to achieve a particular objective. Yup. Far be it.
7.15.2007 1:04pm
PersonFromPorlock:

Person from Porlock: When you say "destroy our enemies," do you have our enemies' exact identities and locations in mind? I'm sure the Pentagon would appreciate your forwarding that data.

Well, how about:

Shaykh Usamah Bin-Muhammad Bin-Ladin
Ayman al-Zawahiri, amir of the Jihad Group in Egypt
Abu-Yasir Rifa'i Ahmad Taha, Egyptian Islamic Group
Shaykh Mir Hamzah, secretary of the Jamiat-ul-Ulema-e-Pakistan
Fazlur Rahman, amir of the Jihad Movement in Bangladesh


for starters? We've actually killed some of them since 9/11 but they declared war on the US in 1998 and we ignored them then. I'm pretty sure that if we singled out other Imams who declare jihad on us, or issue fatwahs against individuals like Salman Rushdie or Ayaan Hirsi Ali, as being literally at war with us and went after them with a military response they'd suddenly discover the virtues of moderation. Or if they didn't, then their countries of residence would, and deliver the malefactors to us in chains.
7.15.2007 7:12pm
nedu (mail):
[D]o you have our enemies' exact identities and locations in mind?


According to evidence provided by John W. Dean to the Senate, a master list was put together by then-White House counsel Charles W. Colson. The list was forwarded to then-White House Chief of Staff H. R. Haldeman and John D. Ehrlichman.

Those are the enemies you're talking about, right?
7.15.2007 8:07pm