PITTSBURGH: Sulmasy on National Security Courts

Joseph Schaeffer, Pitt Law '12, attended a talk on a proposed national security court system given by US Coast Guard Captain Glenn Sulmasy*, a law professor at the US Coast Guard Academy and a National Security and Human Rights Fellow at Harvard University...



Over the past seven years the Guantanamo Bay detention facility has excited more controversy than perhaps any other aspect of the "War on Terror" except Operation Iraqi Freedom. Positions have hardened, battle lines have been drawn, and compromise seems remote. On the one side are those who support trying detainees in a system of military commissions. On the other side are those who propose trying the detainees in the American civilian court system.** Enter Captain Glenn Sulmasy with a third system of "national security courts" and a plan that he says reconciles the policy goals of both sides into a workable structure. Anxious to learn more about his proposed solution, I attended his talk, which he focused on principles and ideas set forth in his new book, The National Security Court System: A Natural Evolution of Justice in an Age of Terror.

Sulmasy began with the obligatory praise of the groups which had invited him, the Pitt Law Federalist Society and the Pitt Law Veterans Society, and moved on quickly to his four proposals for the "War on Terror." It appeared that he was not only prepared to propose a solution for the Guantanamo detainees, but also for the problems with the War on Terror, in general. The audience would have to wait to learn more about national security courts.

First, Sulmasy proposed changing the name of the "War on Terror" to the "War on al Qaeda." By specifying an enemy, the United States would gain the possibility of eventually claiming victory rather than continuing to fight against indeterminate forces. Specificity would also prevent states like Iran from attempting to gain politically by framing themselves as victims of American aggression. Second, Sulmasy proposed that the United States call for an international conference treating the rights of detainees under existing agreements, such as the Geneva Conventions. Not only would the United States gain good will through such a proposal, but it would remove uncertainty about detainee rights which exists under current agreements. Sulmasy joked that, knowing the international community, the negotiations could take years or even decades, eliciting a laugh from the audience. Third, Sulmasy argued for the necessity of a military surge in Afghanistan similar to that employed in Iraq. Fourth, Sulmasy proposed a National Security Court System (NSCS) to try the detainees captured in the War on Terror.

But all this was only a preview of what was to come. Sulmasy felt obligated to rebut the feasibility of the military commission and the civilian court system alternatives, perhaps to preempt criticisms that his third way is unnecessary. According to Sulmasy, the primary defect of the civilian court system consists of its strict evidentiary and procedural requirements. While this might initially seem counter-intuitive, it actually makes quite a bit of sense. Guantanamo detainees were not captured according to civilian evidentiary and procedural requirements. Trial courts could deal with this by either acquitting detainees en masse or relaxing evidentiary and procedural requirements, thereby raising constitutional issues and weakening the protections afforded all Americans. Neither of these options seems particularly attractive. Sulmasy also argued that civilian court judges lack the requisite experience to try national security cases and that it would be difficult to find impartial jurors. Turning to military commissions, Sulmasy defended their use while simultaneously acknowledging their impracticability. Arguing that military commissions are both constitutional and just, since most detainees have more rights than in their home countries, Sulmasy nonetheless acknowledged that the previous administration's public relations blunders meant that the military commission would need to be abandoned. One could argue that this was a gross understatement, but Sulmasy seemed anxious to move on. It was time to discuss his proposed National Security Court System.

A National Security Court System would be established by Congress under its Article III powers, similar in nature to current specialty taxation, bankruptcy, and FISA courts. The NSCS would be firmly in the public sphere, overseen by the Department of Justice rather than the Department of Defense, and proceedings would be presumptively open. As explained by Sulmasy, this means that the press, international observers, etc., would have access to the proceedings, except where classification and national security issues mandated otherwise. Detainees would be represented by either Judge Advocate Generals or federal public defenders and would be guaranteed a habeas corpus hearing within three months of capture and full trial within one year of capture. Detainees would not receive the full benefit of American constitutional protections, but would rather be subject to lessened evidentiary and procedural requirements. Sulmasy acknowledged the controversiality of these lessened protections without prompt, but argued again that the majority of detainees still would have more rights than in their home countries. The trials would occur on military bases for security reasons and would be chaired by special military National Security Court judges. Finally, the NSCS would be established with a sunset provision, which Sulmasy proposed setting at five years, in order to force Congress to reevaluate its efficacy and Constitutionality at some future point.

Sulmasy raised several interesting points during his talk, particularly the Catch-22 presented by trying alleged terrorists in civilian courts. Should the courts strictly apply procedural and evidentiary rules, thereby freeing possibly dangerous individuals, or should the courts relax these rules to secure convictions, thereby weakening these Constitutional protections for all Americans? While I left Sulmasy's talk with a new perspective on the difficulty faced by policymakers tasked with solving this issue, I was unconvinced by Sulmasy's solution. I remain unpersuaded that the National Security Court System is much more than military commissions in civilian disguise.

* Capt. Sulmasy has written opinion pieces for JURIST Forum.

** On Thursday, October 15th, the House of Representatives passed legislation that would permit Guantanamo detainees to be subject to trial in federal courts on American soil.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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