The Case Against a National Security Court

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that instituting a special "national security court" to try terrorism and related cases outside of the regular federal court structure would perpetuate illegality and serve neither our traditional values nor the best interests of the United States....

JURIST noted in June that a group of high-level national security experts convened by the Constitution Project had issued a report [PDF] opposing creation of a special national security court because it would pose “a grave threat to our constitutional rights”, and observed that a similar report issued by Human Rights First in May had stated that terrorism cases should be tried in the ordinary federal district courts [PDF]. Shortly afterward, also on JURIST, Professor Ben Davis warned against creating “Star Chamber justice” by establishing such a body.

Now, however, proponents of what Ben termed “un tribunal d’exception” are pushing the matter before Congress. For this reason, it is important to note several additional reasons why a special national security court should not be created.

During an actual armed conflict to which the laws of war apply, a national security court would have to comply with the customary and treaty-based requirements set forth in common Article 3 of the 1949 Geneva Conventions which, as noted in my book Beyond the Law, are absolute and minimum requirements applicable with respect to any person detained during either an internal or an international armed conflict. These mandate that a court be “regularly constituted” and afford “all the judicial guarantees” of due process that are reflected in customary international law – which include, at a minimum, those mirrored in Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The Supreme Court aptly affirmed in Hamdan v. Rumsfeld that the “core meaning” of the phrase “regularly constituted” has been authoritatively set forth in general commentary by the International Committee of the Red Cross and excludes “‘all special tribunals’” and requires that courts be “‘established ... [and] already in force in a country.’” While concurring in Hamdan, Justice Kennedy noted that there is little doubt that the phrase relates to “standards deliberated upon and chosen in advance.” As Hamdan recognized, a court (1) must not be a “special” tribunal, and (2) must already be in existence. A special national security court simply could not meet the first test and, if otherwise proper, could only operate prospectively with respect to incidents arising after its creation.

Additionally, a national security court would comply with common Article 3 only if it provides “all the judicial guarantees” of due process reflected in customary international law. As the Supreme Court stated in Hamdan, “[i]nextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal,” and “the phrase ‘regularly constituted court’ ... must be understood to incorporate the barest of those trial protections that have been recognized by customary international law.” The Supreme Court correctly added that “[m]any of these [due process requirements] are described in Article 75 of [Geneva] Protocol I” and in “the same basic protections set forth” as minimum human rights to due process in Article 14 of the ICCPR. Importantly, customary minimum human rights to due process reflected in Article 14 of the ICCPR apply in any social context and pertain, therefore, even when the laws of war are not applicable.

As documented in Beyond the Law and recognized by the Supreme Court in Hamdan, violations of customary rights to due process would include: (1) preclusion of the accused and defense counsel from learning what evidence was presented in closed hearings, (2) admission of hearsay evidence, (3) admission of unsworn statements, (4) denial of access by an accused and defense counsel to evidence in the form of classified information, (5) denial of confrontation of all witnesses against an accused, (6) use of “evidence obtained through coercion,” (7) denial of the right to be tried in one’s presence (absent disruptive conduct or consent), and (8) denial of review by a competent, independent, and impartial court of law (i.e., an Article III court). It seems unavoidable that a special national security court with special procedures that deviate from the federal rules of criminal procedure would not be designed to enhance fairness, fully meet bilateral and multilateral treaty requirements of equality of treatment, or provide more general equal protection of the law to criminal accused.

It is likely that some will propose the creation of a special court in order to facilitate convictions that would not be possible in a regular federal district court, especially through use of “evidence obtained through coercion” as part of what John Yoo and President Bush have admitted was a “common, unifying” plan or “program” of coercive interrogation that most know involves several manifest violations of customary and treaty-based international law and that can form the basis for criminal prosecution of (1) direct perpetrators, including those who authorized or ordered coercive interrogation; (2) leaders who were also or merely derelict in duty; (3) those who participated in a “joint criminal enterprise;” and (4) those who aided and abetted coercive interrogation or who were otherwise complicit (through memos or elsewise) in denials of rights under the laws of war, other violations of the laws of war, and violations of other international criminal law such as violations of the Convention Against Torture and customary prohibitions of secret detention. Quite clearly, lack of an intent to commit a crime would not obviate such forms of criminal responsibility and orders or authorizations will not lessen criminal responsibility for conduct that is manifestly unlawful. For example, an aider and abettor need only be aware that his or her conduct would or does assist that of a direct perpetrator. It is pertinent in this regard that there are reports that during multiple sessions in the White House beginning in 2002 Condoleezza Rice, Dick Cheney, George Tenet, Donald Rumsfeld, John Ashcroft, John Bellinger, and others viewed simulations of and/or discussed and approved use of waterboarding, the “cold cell,” use of dogs to instill intense fear in detainees, and stripping naked, among other patently illegal tactics that were to be used as part of the admitted program of coercive interrogation.

Perpetuating illegality with a national security court would not serve our traditional values and the best interests of the United States, especially as we seek to regain our honor and international stature during a new Administration committed to the rule of law.

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.