Beyond Guantánamo, Obstacles and Options (Part II)

By Gregory S. McNeal[*]

[download pdf]

[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006.  Part II appears today.]   

II.  Beyond Military Commissions: Obstacles Facing Transition to a National Security Court

Recently, the academic and policy debate has begun to move towards the establishment of a national security court.  Both Presidential candidates have indicated interest in closing Guantánamo Bay and moving away from military commissions. Senator Barack Obama declared, “I will also reject a legal framework that does not work. . . . I have faith in America’s courts, and I have faith in our JAGs.  As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.”[73] Senator McCain has declared that he would close Guantánamo[74] while still using military commissions for trials.[75]

Given these prominent positions, the academic and policy debate has begun to evolve.[76]  Professors Neal Katyal and Jack Goldsmith proposed a National Security Court,[77] and Professor Amos Guiora did the same.[78]  Andrew McCarthy identified why the current systems are inadequate.[79] Central to his analysis is the need to conduct interrogations and gather intelligence to prevent terrorist attacks, and the concomitant need to protect such information from unnecessary disclosure through the court system.[80]

Ben Wittes of the Brookings Institution set forth a detailed reform proposal.[81]  He cites to multiple examples, ranging from the 1993 World Trade Center Bombing trial to the trial of Jose Padilla, noting that these were perceived successes with serious underlying flaws.  Wittes suggests comprehensive reform centered on increased detention standards and a “trial regime that gives detainees enough process to satisfy the commands of the Constitution and garner international tolerance, if not quite admiration, yet at the same time facilitates the maximum number of criminal trials.”[82]

Importantly, Wittes and other reformers recognize the need for protection of intelligence and generally set forth potential mechanisms for protecting information in a national security court.  Similarly, Professor Guiora proposes a system for terrorism trials which he terms a “domestic terror court” that would protect intelligence.[83]

Despite the robust nature of these proposals, obstacles exist which will prevent a transition to any of these systems.  While these solutions may work for new terrorism suspects, the proposals do not readily resolve the challenge posed by the current detainees, especially the eighty who have been identified as candidates for trial by military commission.[84]  If Congressional reformers decide to establish a new system, be it a national security court or abolishment of the military commissions, they will face significant obstacles during the transition period.

Beyond Guantánamo, Obstacles and Options

By Gregory S. McNeal[*]

[download pdf]

[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006 .  Part I appears today.  Part II will be posted on Thursday, August 14.]   

Introduction

The Military Commissions Act of 2006 (MCA),[1] passed after the Supreme Court’s Hamdan[2] decision was intended to remedy shortcomings in prior military commissions. Implementing the MCA has proven difficult, as observers have witnessed the high profile resignation of the system’s chief prosecutor, and Congressional hearings questioning the future of terrorism trials. These issues were punctuated by the Supreme Court’s Boumediene[3] decision holding that detainees have a Constitutional right to habeas corpus. Observers unfamiliar with the processes involved with the military commissions may have thought that the Boumediene decision would force the administration to forgo military commissions, perhaps opting instead for trials in Article III courts. However, nothing in the decision required such a result.

In fact, just two months after the Supreme Court’s Boumediene decision, the trial of Osama bin Laden’s alleged bodyguard Salim Hamdan—the first terrorism-related trial by military commission—concluded in a guilty verdict on charges that he provided material support for terrorism.[4] While lower courts begin to work out the details of the Boumediene decision Hamdan will have a simultaneous opportunity to appeal his conviction, and the legitimacy of the tribunal that tried him. In short, when the dust settles, Congress will again be faced with a need to reform military commissions or to prepare the federal judiciary for terrorism trials. This Essay seeks to contribute to that reform discussion.