Consideration of National Security Courts Lands Obama in a Legal Minefield

Monday’s news that President-elect Barack Obama and his advisers are planning to close the prison at Guantanamo Bay and prosecute some of the prisoners detained there in special national-security courts has prompted a retreat by the Obama team and swift responses by advocates on all sides.

On Tuesday, senior Obama foreign policy adviser Denis McDonough said that while Obama agreed the Guantanamo prison should be closed, there was “absolutely no truth to reports that a decision has been made about how and where to try the detainees, and there is no process in place to make that decision until [Obama’s] national security and legal teams are assembled.”

Still, the apparent leak that Obama was even considering a special court system was a step into a legal policy minefield.

Advocates on all sides have staked out strong positions on the matter: the ACLU and a bipartisan coalition created by the Constitution Project, along with some lawyers who have represented detainees at Guantanamo Bay, make a strong case that specially-created national-security courts are unnecessary and likely unconstitutional. And Human Rights First has issued a study demonstrating that the federal court system works just fine for prosecuting terrorists.

Meanwhile, the neo-conservative Foundation for Defense of Democracies, a group started after 9/11 that includes former FBI Director Louis J. Freeh and former House Speaker Newt Gingrich, supports creating special courts.

So does Harvard Law Professor Jack Goldsmith, who served briefly as director of the Justice Dept.’s Office of Legal Counsel before resigning and writing his book, “The Terror Presidency,” which includes a scathing critique of the Bush administration’s legal analysis and policies on the treatment of detainees.

But it’s not just conservatives that support a special court system to try suspected terrorists. Moderate liberals like Georgetown University law professor Neal Katyal, who represented Osama bin Laden’s driver, Salim Hamdan, before the U.S. Supreme Court, and later at his military commission trial, has written in favor of creating special courts to try suspected terrorists, and even their “preventive detention.”

Harvard Law Professor and Obama adviser Laurence Tribe has written (with Katyal) that the use of military tribunals to try suspected terrorists could be constitutional and even wise, so long as they’re authorized by Congress and comport with constitutional commands.

How a President Obama is going to weigh all these different viewpoints remains to be seen. As I pointed out yesterday, the challenge Obama faces is made far more difficult because of the harsh interrogation methods used against suspected terrorists, or “enemy combatants,” as the Bush administration calls them. The problem is that evidence obtained by coercion isn’t admissible in regular U.S. courts; but letting potential terrorists go, possibly to strike again, isn’t a politically acceptable option for a new president.

Then again, a special court created to accommodate the torture problem and even permit preventive detention of suspected warriors would set a troubling precedent that we’d be stuck with for many years to come.