Constitution Project | June 23, 2008

Blue Ribbon Committee Condemns National Security Courts

Critique_of_the_National_Security_Courts.pdf

Bipartisan Coalition Rejects Proposal to Create Separate Court System

Washington, DC - Today the Constitution Project condemned proposals to create a system of "national security courts" in a new white paper, "A Critique of 'National Security Courts.'" In recent years, and particularly in the aftermath of the Supreme Court's decision in Boumediene v. Bush affirming the constitutional rights of "enemy combatants" to challenge their detentions through habeas corpus, several scholars and government officials have called for the creation of specialized hybrid tribunals that would review the preventive detention of suspected terrorists (both within and outside of the territorial United States), conduct the detainees' criminal trials, or, in some cases, both.

A bipartisan coalition of political leaders, national security experts, and legal scholars - all members of the Constitution Project's Liberty and Security Committee or Coalition to Defend Checks and Balances - rejected such proposals this morning, contending that "they neglect basic and fundamental principles of American constitutional law, and they assume incorrectly that the traditional processes have proven ineffective. ... We believe that the government can accomplish its legitimate goals using existing laws and legal procedures without resorting to such sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries." The signers describe the ability of traditional civilian and military courts to prosecute those suspected of terrorism and go on to recommend that Congress reject any proposals to create "national security courts."

The following may be attributed to Sharon Bradford Franklin, senior counsel at the Constitution Project: "Establishing an unprecedented and unnecessary system of tribunals risks undermining the constitutional protections enshrined in our criminal justice system. Plans to create a 'national security court' scheme incorrectly assume that existing civilian and military courts are not up to the task. The condemnation of these misguided proposals by respected leaders from across the political spectrum should give pause to those who would abandon fundamental tenets of the Constitution. The search for a national security policy that keeps us safe while preserving liberty is not a zero-sum game."

Notable signers of the white paper include:

• General Wesley Clark (USA, ret.), former Supreme Allied Commander Europe and Commander-in-Chief of the United States European Command;
• Mickey Edwards, former Member of Congress (R-OK) and Chairman of the House Republican Policy Committee;
• Dr. Morton H. Halperin, Executive Director of the Open Society Policy Center and former Director of Policy Planning Staff at the United States Department of State;
• Philip Heymann, former Deputy Attorney General;
• David Kay, former Director of the Iraq Survey Group and Chief Weapons Inspector for the United Nations;
• David Keene, Chairman of the American Conservative Union;
• Harold Hongju Koh, Dean of Yale Law School and former Assistant Secretary of State for Democracy, Human Rights and Labor;
• Thomas Pickering, former Undersecretary of State for Political Affairs and United States Ambassador to the United Nations;
• William S. Sessions, former Director of the FBI;
• David Skaggs, former Member of Congress (D-CO) and Chairman of the Democratic Study Group; and
• Patricia Wald, former Judge of the International Criminal Tribunal for the former Yugoslavia and Chief Judge of the United States Court of Appeals for the D.C. Circuit.