By Gregory S. McNeal[*]
[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.” Senator McCain has declared that he would close Guantánamo while still using military commissions for trials.
Given these prominent positions, the academic and policy debate has begun to evolve. Professors Neal Katyal and Jack Goldsmith proposed a National Security Court, and Professor Amos Guiora did the same. Andrew McCarthy identified why the current systems are inadequate. 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.
Ben Wittes of the Brookings Institution set forth a detailed reform proposal. 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.”
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.
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. 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.