US Should Set Up National Security Court to Deal With Terrorists, Say Analysts

July 7, 2008 - 7:32 PM

(CNSNews.com) - The United States should establish a National Security Court designed to handle terrorism cases fairly but also in a way that does not jeopardize public safety, a legal expert argued Wednesday.

Andrew McCarthy, director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, told a press conference in Washington D.C., that terrorist detainees being held by the U.S. military are not entitled to the same protections as American citizens.

Since the war in Afghanistan began following the 9/11 terrorist attacks, the U.S. military has detained terror suspects in prison camps in Guantanamo Bay, Cuba and in other locations around the world. To date, none of the detainees have had trials.

During the 1990s, McCarthy said, terrorists were "regarded as if they were vested with the same plethora of constitutional protections as American citizens accused of quotidian crimes."

Under those protections, he noted, the government has to provide all its evidence to the defendant.

In the case of terror suspects, allowing defendants to have this information is dangerous and especially so in a war that could be infinite, McCarthy said.

"This is a staggering amount of information, certain to illuminate not only what the government knows about terrorist organizations but also the intelligence agencies' methods and sources for obtaining that information," he said.

Terrorists could not be treated like combatants from past conflicts, McCarthy argued.

"The combatants of old were from national armies. There was no doubt they were combatants. There was little doubt that the sovereign power of the warring people would some day end the war either through decisive military campaigns or through diplomacy," he said.

"The new combatants, to the contrary, are terrorists... and become alleged terrorists once they are off the streets and in the Western system of justice," McCarthy said.

He added, "Congress should long ago have prescribed a system, such as a National Security Court, which gets terrorists out of civilian courts and affords them fundamental fairness while protecting public safety."

According to McCarthy, this court would "be drawn from the talented pool of experienced federal judges, would develop an expertise in issues peculiar to this realm: classified information, the Geneva Conventions, the laws and customs of war, etc., and would have jurisdiction over matters related to the detentions and any resulting trials of alleged unlawful combatants."

Earlier support for a National Security Court came from Glenn Sulmasy, a law professor at the U.S. Coast Guard Academy, who said in a May 2006 Jurist article that there was a "lack of appropriate laws to govern this new conflict."

"This is a new war, one that mixes law enforcement and warfare, and does not fit neatly in either regime," he said.

Sulmasy said the president should create a blue ribbon commission "to look at the possibilities of creating a national security court system which will address questions as to proper detention, adjudication, intelligence gathering, terrorist surveillance and other such legal issues associated with the threat of international terror."

He suggested that the proceedings be handled by the military and closed to the public.

Speaking at Wednesday's Foundation for Defense of Democracies event, Steven Shapiro, a legal director with the American Civil Liberties Union, said that "any rules that we adopt are going to affect large numbers of people for long periods of time."

"We need to begin from a position of skepticism when we are asked to relinquish either our freedoms or the procedures that we have developed for over two centuries to protect those fundamental rules," he said.

Mordechai Kremnitzer, a senior fellow at the Israel Democracy Institute, a research body based in Jerusalem, argued that care should be taken in the way terrorists are treated.

"What makes terrorists so reprehensible is not their purpose, but their means," he said. "When we use dubious means to deal with terrorism, we close the moral gap."

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