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Monday, February 04, 2008

Do We Already Have a "National Security Court"?

[An edited version of this post also appears at National Security Advisors.]

Jonah beat me to the punch re: a post on the new Super Bowl champions, which leaves me to talk substance on this dreary Washington Monday morning... I was very lucky to play a part in last Friday's conference here at WCL asking "Do We Need a New National Security Court?", where the star was undoubtedly the keynote speaker, Judge Leonie Brinkema of the Eastern District of Virginia, who has presided over the Moussaoui and Al-Timimi cases, among others.

I moderated the last panel -- on whether we need a new national security court for criminal prosecutions of suspected terrorists, and wanted to focus on one suggestion made by one of the questioners--one of the conference co-organizers, Ben Wittes from the Brookings Institution. Ben's question was simple enough: Don't we already have such a national security court, under the guise of the military commissions set up pursuant to the Military Commissions Act of 2006 ("MCA")?

After reflecting on that question for a minute, I sort of hedged, and suggested that I thought "it depends." Why? Details after the jump... 

So, the basic premise of Ben's question was that the MCA, in effect, sets up a national security court by giving the government broad powers to try terrorism suspects before courts whose procedures and evidentiary rules vary dramatically from that of the typical Article III civilian criminal tribunals. And he is certainly right in so characterizing the MCA.

But I think it's slightly more nuanced than that. If one accepts, as I do, that the laws of war recognize a small class of cases where enemy belligerents during wartime may lawfully be tried by a military commission, then I don't think it meets a loose definition of a general "national security court" simply for Congress to provide more comprehensive statutory authority for such tribunals.

The hard part is the scope of the MCA commissions' personal and subject-matter jurisdiction. And given the breadth of the definition of "unlawful enemy combatant" in section3 of the Act, combined with the inclusion of a host of substantive offenses (e.g., conspiracy; material support) not recognized by the laws of war (and capable of sweeping within their scope a massive range of criminal, as opposed to belligerent, conduct), I think it is quite clear that the MCA creates military commissions with jurisdiction over both offenders and offenses that substantially exceeds that of traditional military commissions.

Of course, it's a separate question whether the MCA is unconstitutional in so providing. The bigger point here, methinks, is that the answer to that question has implications for the future of the idea of "national security courts." If there are constitutional limits on the circumstances under which Congress may depart from the Article III model for trying federal criminal offenses, presumably those limits would be implicated here. If, conversely, the jurisdiction of the MCA commissions is eventually upheld, then I think it is fair to say that the MCA could become an important precedent for future "national security court" proposals, especially where non-citizens are concerned.

One thing is certainly clear: The contention that was raised several times on Friday--i.e., that this debate is entirely academic and lacks practical significance because "no one" would ever dare create a national security court for criminal prosecutions--may not be entirely accurate. And the MCA, stealthily (is that even a word?), is the reason why.

Posted by Steve Vladeck on February 4, 2008 at 09:50 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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I think we have a NSC, but it is some combination of the DC Circuit and the US District Court for the District of Columbia. If things work right, any executive tribunal will be given less deference the more it acts like a kangaroo court. (And since there has never been completed direct review of a military commission, I am not going to go about calling them "kangaroo courts.") At some level, both the DC Circuit and the US District Court can pretty much address all issues (apart from convening a jury trial) via the All Writs Act.

A better solution would be to establish, by statute, some kind of court staffed with rotating current (or senior) Article III Judges that can sit at GTMO to hear whatever kinds of habeas petitions emerge, or to simply change the appeals from whatever comes out of the MCs to review by the CAAF. Both of these things have been proposed, and probably won't get much traction until... well, after the next Supreme Court decision and/or the next election.

Posted by: S.cotus | Feb 4, 2008 1:34:26 PM

It all depends on what you mean by a National Security Court. The Military Commission Act creates creatures of the Executive subject to Judicial review. I prefer to look at whether these hybrids are playing a judicial function. As I said at the conference, we should go back to Justice Jackson's view of minimum requirements for a Nuremberg type structure (ASIL May 8, 1945 available at www.roberthjackson.org), to wit:

1. That the defendant be able to be found innocent (or acquitted) in the process.
2. That the defendant be able to be represented in the manner they desire.

In addition to being in complete violation of our international law obligations under the Geneva Conventions (crime definition and POW or non-POW status definition), the structure of the MCA is essentially to permit evidence that is coerced to be introduced. They give Kangaroo Courts a bad name. So I would not even give them the blessing of being called a National Security Court. I would call them National Security Whatchamacallits or machines for political national security show trial vehicles (pnsstv's).

I think the MCA is the "camel's nose in the tent" and that we should repeal this act as soon as possible and bring ourselves back into line with more traditional structures or the law of war or criminal courts (supporting Judge Brinkema's view). I am tired of the panic and improvisation that has gone on since 9/11 in this domain. The MCA and a National Security Court would be more of that kind of improvisation. A bad idea.


Posted by: Benjamin Davis | Feb 4, 2008 1:20:50 PM

Marty -- Let me think on your substantive point for a bit. My point wasn't so much to suggest that the commissions are unconstitutional, but that there would be some important constitutional questions, including those you note.

As for Judge Brinkema, an MP3 of her remarks should be available here. I doubt I could do them justice!

(If the link doesn't work, here is the URL: http://www.wcl.american.edu/podcast/audio/20080201_WCL_TAD.mp3).

Posted by: Steve Vladeck | Feb 4, 2008 11:02:59 AM

Well, the biggest difference, of course, is that the commissions are available only to try aliens, not citizens, right? (Do I recall that correctly?)

But as limited to aliens, isn't Ben onto something? I agree with Steve that the MCA creates military commissions with jurisdiction over both offenders and offenses that substantially exceeds that of traditional military commissions -- that goes well beyond the traditional laws of war. But I'm curious what Steve has in mind in suggesting constitutional problems: Yes, there are the ex post facto problems with applying such new rules to past offenses. But as to *future* conduct, what is constitutionally dubious about the commissions, as applied to aliens? The absence of a jury right? Certain evidentiary rules that might violate aliens' due process rights (which might be recognized in Boumediene)?

More importantly, Steve is absolutely right that Judge Brinkema stole the show: Steve, please give your readers a better sense of why that is -- about how compelling her case was for handling these trials in existing district courts. Or, better yet, post a transcript of her remarks!

Posted by: Marty Lederman | Feb 4, 2008 10:57:30 AM

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