National Security Courts and Preventive Detention: A Bad and Unnecessary Idea
JURIST Special Guest Columnists Representatives David Skaggs (D-CO) (1987-1999) and Mickey Edwards (R-OK) (1977-1993), members of the Constitution Project’s Liberty and Security Committee, say that despite the Obama administration’s welcome new approach to handling terrorism cases, the US government could still use proposed “national security courts” to short-circuit constitutional guarantees and permanently detain individuals it deems dangerous…
President Barack Obama has changed course in how we handle terrorism cases, and we commend his leadership. His executive orders requiring the government to close Guantanamo within a year, comply with the Geneva conventions, and halt prosecutions by military commissions are hallmarks of that change.
Even so, the orders still allow for the legalization of the Bush administration’s policy of “preventive detention” and for trials lacking full constitutional safeguards. Proposals linger in Washington that would establish “national security courts” to supervise a new preventive detention system or to try terrorism suspects. We focus here on the threats posed by preventive detention.
The proposed national security courts would oversee detainees whom the government may claim cannot be released, sent to another country, or prosecuted in regular federal courts. Without ever being required to prove its case, the government could use these courts to short-circuit constitutional guarantees and permanently detain individuals it deems dangerous.
Let’s not overlook the fact that the federal criminal justice system provides all the tools necessary for effective and fair terrorism prosecution and for detention within well-developed, constitutional boundaries. The government can prosecute citizens and non-citizens alike in federal courts under far-reaching laws that criminalize support for terrorism, wherever and however it may happen.
National security court proponents claim the government needs a new tool for those it “knows” are terrorists but cannot prosecute because evidence may be inadmissible as obtained through illegal means, such as torture. Or, they fear that trials will disclose important intelligence information.
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Tags: Guantanamo, national security courts, Obama, preventive detention, terrorism cases
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Skaggs and Edwards do not begin to take seriously the possibility of national security courts.
They object to “the indefinite imprisonment of a person never charged with a criminal act, even if some new national security court were to “authorize” such detintion.” But this is a strawman. There is no reason a security court could not charge alleged terrorists. It simply would differ from normal federal-court proceedings in the handling of evidence, the specific due-process features, and, possibly, the level of proof required for conviction.
Skaggs and Edwards also quetion “how any system of preventive detention, however supervised, can be reconciled with the Constitution’s basic guarantees of due process and … fundamental human rights….” Yet we allow short-term preventive detention when defendants are denied bail before trial, and some cases have allowed preventive detention of sexual predators even AFTER they have served out their sentence. Clearly, some cases of preventive detention ARE thought acceptable.
Prof. Don E. Scheid
Winona State University
DScheid@Winona.edu
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