The Dangers of a National Security Court in the U.S. Court System

While Jack Goldsmith, Neal Katyal, Harvey Rishikof, and even Amos (see posting below) should be credited for thinking outside the box on what to do with terrorists, creating a special national security court within the U.S. court system is a bad idea. Granted, the military commissions operating outside Geneva protections down in Guantanamo Bay are no better. But the idea of allowing convictions based on classified evidence that defendants cannot see still smacks of separate justice, not equal justice. Prof. Rishikof’s 2004 NYT op-ed, which predates the one by Goldsmith and Katyal, argues:

Prosecuting terrorism is compromising our traditional court structures. The courts that are currently trying to handle such cases are clearly inappropriate. What we need is a specialized, secure and protected federal court dedicated to matters involving domestic and international security…. A national security court, with its trials as open as possible, would give our allies needed reassurance, though the court would need to forgo the death penalty in order to ensure our allies would extradite terrorists. Having a specialized court would also make it possible for us to designate and fortify an existing federal courthouse to hold terrorism trials, which would improve security for all participants. A specialized judicial bench could also travel to locations like Camp X-Ray to conduct hearings.

This really does raise the specter of closed justice – judges hiding behind fortified bunkers and all. The image is really one of the Soviet variety. As we have seen with the rampant abuse of the closed FISA court system by the executive branch, this is not the way. John Walker Lindh was tried and convicted in an Article III federal court. Zacharias Moussoui was tried and convicted. The shenanigans that went on in that case were due to the ineptitude of the DOJ attorneys prosecuting the case; not the federal judge. Our court system can handle the stresses of national security cases. Federal judges have spent decades developing theories of deference to the executive in matters that deserve that deference. Let’s trust the judges we’ve appointed to the bench to do their jobs.