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Return to a Proven Path: Established Systems Can Handle Terrorists

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Today’s Boumediene v. Bush case in the Supreme Court feels a bit like “Groundhog Day." It will be the fourth time in as many years that the high court has heard a case challenging the Bush administration’s policies at the Guantanamo Bay prison. Just like in the other three cases, the court is expected to rule against the Bush administration. But this time the Court may finally bring an end to the disastrous six-year military commission experiment that has so far brought about only one plea-bargained conviction.

Boumediene v. Bush will determine the constitutionality of the Military Commissions Act, which denies suspected terrorists and unlawful enemy combatants the right of habeas corpus. If the Supreme Court does declare that portion of the Military Commissions Act unconstitutional, there will be a lot of questions about what the next steps should be.

One perceived “silver bullet” solution is to create another new legal regime—a “National Security Court”—to try terrorists. The most prominent and detailed of these proposals, one that may have the tacit support of new Attorney General Michael Mukasey, would establish a broad preventive detention regime. Moreover, it would force federal judges to preside over trials where defendants are presumed enemies, threatening judicial integrity and undermining the legitimacy of any convictions.

Adopting a national security court system would send the United States down another unproven path prone to repeat the same mistakes. It would not further justice or American legitimacy. Rather, it would risk creating American courts that more resemble the tribunals of dictators than those of democracies. And that would be a strategic victory for Al Qaeda, not for Americans.

We would lose a great deal and gain nothing, because creating a National Security Court purports to solve a problem that doesn’t really exist. Before we choose to construct another untested quasi-judicial scheme, we should take a closer look at U.S. courts and how they have performed since 9/11. The major critiques of the detention and prosecution of terrorists in the criminal justice system have centered on the system’s allegedly strict evidentiary rules, its supposed inability to handle classified information, and its reactive posture of primarily prosecuting cases once the damage has already been done.

Proponents of the military commissions and national security courts fail to appreciate the flexibility within the federal rules of evidence. For instance, the standard for authentication of evidence does not require that a chain of custody always be proven. Likewise, the oft-cited hearsay rule is not an iron bar to evidence; the federal evidence rules contain numerous specific exceptions for hearsay as well as a catch-all exception for statements having the necessary “circumstantial guarantees of trustworthiness.”

Regarding classified information, both Rule 16(d) of the Federal Rules of Criminal Procedure and the Classified Information Procedures Act provide a means to limit discovery and protect classified information. In particular, CIPA provides an extensive and sophisticated regime for protecting the full range of sensitive and classified information at the discovery and trial stages. When necessary, the defendant may be barred from receiving evidence or attending hearings involving classified information. Supreme Court precedent also permits closing trial proceedings when truly necessary.

Federal prosecutors already possess multiple avenues to detain suspected terrorists prior to the commission of terrorist acts. Material witness warrants permit the limited detention of citizens and non-citizens under judicial supervision on a showing of “probable cause” and a connection to an ongoing criminal investigation. The Attorney General also has broad power to detain immigrants for renewable six-month periods based on his “reasonable belief” that they are a national security threat. Criminal conspiracy charges, the very charges used to convict Jose Padilla, enable the government to arrest and convict suspects before they complete plans to commit terrorist acts. Oversight must be applied to prevent abuse, but these powers provide the government with ample authority to use the criminal justice system to prevent terrorist attacks, not just prosecute the perpetrators.

The criminal justice system, coupled with standard military trials when necessary, has and can further law enforcement, intelligence, and prevention efforts without undermining our fundamental liberties or our long-term efforts to combat terrorism. It is time to let it fully do that crucial work.

Michael Hoffman, J.D., served as a Visiting Legal Research Analyst at the Center for American Progress. Ken Gude is Associate Director for International Rights and Responsibilities at the Center for American Progress

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