- The Washington Times - Sunday, September 11, 2005

Fifth of five parts.

The United States has a system in place for reviewing the status of detained enemy combatants, periodically considering whether or not they should be freed and prosecuting them for violations of the laws of war when appropriate. They are not in a legal black hole. At the same time, the system is not well equipped to deal with individuals who are not captured fighting against American forces overseas in a combat situation. Although, as the Supreme Court held in the World War II Nazi Saboteur case, Ex parte Quirin (1942), al Qaeda operatives captured in the United States can be detained and/or prosecuted before a military commission, the legal status of individuals becomes less clear the further their role is removed from the battlefield — especially when dealing with support structures in Europe and the United States.

There is little doubt that al Qaeda will increasingly have to rely on such “domestic” infrastructures in order to carry out future attacks on the territory of the United States and its allies. Such attacks continue to be a major goal of the organization, as the recent bombings in London suggest. Those bombers, and their immediate associates, were clearly combatants and would be properly subject to military law.

However, individuals who assist in less lethal ways must generally be classified as noncombatants under the traditional rules. This would include, among other active sympathizers, the “political” leadership from which al Qaeda and its operatives draw inspiration, but who have no active role in planning or executing operations. Such individuals may nevertheless be subject to criminal prosecution — depending on the nature and scope of their activities — and such prosecutions would have to be carried out in the civilian courts.

This, at any rate, is the teaching of Ex parte Milligan (1866), one of the Supreme Court’s most hallowed precedents. There, the Supreme Court set aside the military conviction of a civilian Confederate sympathizer, ruling that civilians cannot be tried in military courts — at least not when the civilian courts are open and operating. Prosecuting civilians in open court, however, presents many of the same difficulties as would processing enemy combatants in the ordinary criminal justice system. In particular, it may well require the public presentation of evidence obtained through intelligence sources, potentially revealing to al Qaeda and its allies information damaging to the U.S. war effort.

Solving this problem will be no easy task. The Constitution requires that civilian trials be conducted in public. Although no right is absolute, the right to a public trial comes very close. As the Supreme Court noted in the leading case of In Re Oliver (1948): “… we have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country.” Thus, whether portions of a civilian trial, as opposed to related proceedings such as a evidence-suppression hearing, can be closed — even based on national-security imperatives in wartime — is doubtful. Even the creation of a specialized court would not resolve the most fundamental problem — absent a constitutional amendment. Nevertheless, some benefits could clearly be obtained by the creation of a special “national security” court.

The establishment of a specialized federal court to hear terrorism cases, involving combatants, noncombatants, or both, has been suggested by a number of commentators, and the proposal has some merit. In particular, an idea advanced by Andrew C. McCarthy — who, as a senior federal prosecutor, obtained convictions against the 1993 World Trade Center bombers — deserves careful consideration. Mr. McCarthy points to the Foreign Intelligence Surveillance Act of 1978 (FISA) as a model for such a specialized court. FISA establishes a “court,” composed of sitting federal judges — selected for this special assignment by the chief justice — to review secret requests for counter-intelligence wiretapping and search warrants.

Mr. McCarthy’s original suggestion was to process captured enemy combatants in such a court, which would certainly be possible under military-style procedures, but the idea could also be beneficially applied to civilian trials of terrorists. At a minimum, it would centralize terrorism cases in a court with extensive experience in handling national-security matters, and which could create over time an uniform body of precedent. The court would be staffed by judges with life tenure whose independence is beyond question, and could easily adopt two sets of procedure — one meeting the constitutional standards appropriate for the trial of combatants (which would permit portions of a trial to be closed) and the other for civilians.

It may well be that, if the war on terror lasts only for the six or eight years that even America’s longest wars have lasted, the current system will suffice — using military commissions to try captured combatants and processing civilians in the ordinary federal judicial system. However, if the United States is indeed facing a generational conflict, then fundamental changes will have to be considered — and a terrorism court modeled on the FISA court is a good place at least to begin the discussion.

Part IV

The flawed alternatives

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP. They served in the Justice Department under Presidents Reagan and George H.W. Bush.


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