Senators at Judge Michael Mukasey's confirmation hearing to be attorney general are likely to ask about many of his writings, including a Wall Street Journal opinion piece with the provocative heading, "Terror Trials Hurt the Nation Even When They Lead to Convictions."
In that column, Mukasey said the country could benefit from a National Security Court — a separate judicial system, specially designed to try accused terrorists. Legal experts have been batting around the idea for a while now.
Washington attorney David Laufman, for example, handled a major terrorism trial two years ago for an American named Ahmed Omar Abu Ali. The case was packed with post-Sept. 11 legal challenges: It involved sensitive classified evidence. And the defendant claimed that the government had illegally wiretapped him, and that detailed written confessions he'd given were the result of torture by Saudi security officers.
A jury in Alexandria, Va., sorted through those issues and eventually convicted Abu Ali on all nine counts and sentenced him to 30 years in prison. That experience led Laufman to conclude that "with certain exceptions, the federal courts have shown themselves to be well-equipped to serve as forums for resolving terrorism cases."
But, like many lawyers with expertise in national security, Laufman thinks it might also be useful to have a separate court for the thorniest cases.
"For example," he says, "the cases involving Sept. 11 mastermind Khalid Sheikh Mohammed, [and] certain other high-value detainees held at Guantanamo, are probably too heavily dependent on sensitive intelligence or too fraught with other issues, such as hearsay or coerced statements, to try in a conventional court."
Those detainees are sitting behind bars indefinitely, without any sort of independent court review. People disagree about whether it will ever be possible to try them in criminal courts.
George Terwilliger says he first raised this concern with the administration five years ago, when he was deputy attorney general.
"We're in for a long-term fight here," Terwilliger says, "so we'd better start looking for long-term mechanisms by which to defend ourselves."
Terwilliger would like to see a national security court that could authorize preventive detention. So a judge could lock suspects up to stop them from committing a terrorist act — even if prosecutors can't show that they've already committed a crime. Britain has a system like that, but the United States does not.
"The government will find a way to identify people who are dangerous and need to be incapacitated to neutralize the threat that they represent, because the people will demand that," Terwilliger says.
He says the question is whether the government will incapacitate people by bending the rules of the system we have now, or by working within the rules of a new system that everybody signs on to.
To groups such as the American Civil Liberties Union, the proposals open the door to policies that are anathema to the American justice system.
ACLU National Legal Director Steven Shapiro wonders, "Are we going to try people on the basis of secret evidence? Are we going to deny defendants the right to confront their accusers? Are we going to allow the government to rely on torture or coerced testimony? And if we do those things," he asks, "how are we going to convince the world that these are fair trials?"
There is no consensus on the answers to those questions. Everyone has different ideas about what national security courts ought to look like. But the people who support national security courts are not confined to conservative legal circles.
Georgetown law professor Neal Katyal represented Guantanamo detainee Salim Hamdan in one of the biggest Supreme Court cases in recent history. He'd like the country to test-drive a national security court.
"If it works effectively and is something the nation can be proud of," Katyal says, "then we can think about re-extending that initial authorization.
Katyal co-authored a New York Times op-ed that called for a national security court overseen by federal judges with life tenure, with a permanent defense bar of lawyers with the highest security clearances. He says the same rules would have to apply to citizen and non-citizen defendants.
"I think to pretend that we will be able to live in a regime where everyone gets a criminal prosecution in every single case is not going to happen," Katyal says. "So I would like to see a program for an extremely small handful of cases that starts to think about an alternative to the existing system."
The attorney general nominee appears to agree with Katyal.
Judge Michael Mukasey wrote an opinion piece encouraging Congress to start thinking about "how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results."
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