The Washington Independent
The Washington Independent

Consideration of National Security Courts Lands Obama in a Legal Minefield

Last updated: 07/31/2020 08:00 | 11/12/2008 02:08
Mitchel Nash

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.

Mitchel Nash | Mitchel works for a high-tech telecommunication firm as a software engineer with vast experience and management skills. The company creates and provides technologies that help service providers provide high-quality voice and data services over broadband access networks while maximizing their network infrastructure investment. He is in charge of the production of the company's management software products as a senior software engineer. Mitchel has a B.Sc. in Computer Sciences from Tel-Aviv Jaffa Academic College.


$1.3 Million for Brown

The GOP’s candidate in the Massachusetts special election raised more than one million dollars -- double the goal -- in a 24-hour moneybomb on the Ron Paul

$1.89 billion given to states to fight HIV

The federal government Monday announced more than $1.89 billion in funding to states to fight the HIV epidemic with access to care and with more cash for the failing AIDS Drug Assistance Program. According to an HHS press release , $813 million of that money will go directly to the ADAP programming. An additional $8,386,340 will be issued as a supplement to 36 states and territories currently facing a litany of unmet needs and access issues.

$1.3 trillion in federal spending unaccounted for, report finds

Despite calls for independent bodies to keep government accountable, the Sunlight Foundation’s most recent Clearspending report has found the federal

1. Brian Schweitzer

As governor of Montana, Schweitzer doesn’t represent one of the most highly populated, high-profile electoral states in the country. But this

1 Brigade and 1 Battalion

ISTANBUL – It’s 10 p.m. in the lowest level of the Istanbul airport. In 20 minutes I’ll be allowed to board my plane to Kabul, bringing me to the

$1 Million for Toomey

Pat Toomey, the former Club for Growth president and leading Republican candidate in Pennsylvania’s 2010 Senate race, has announced a $1 million haul in the

1. Lindsey Graham

Sen. Graham (R-S.C.) is typically regarded as a reliable vote for his party, but he took the bold step of breaking with his fellow Republicans to join Kerry

#1 in Conspiracy Theories

Andrew Young’s tell-all biography of John Edwards, hitting shelves next week, is surging in one category in particular. #1 in Conspiracy

Ten Loopholes That Can’t Make It Into FinReg

Dan Pfeiffer, the White House communications director, wrote a blog post that lists the loopholes lobbyists most want inserted into Sen. Chris Dodd’s (D-Conn.)

Bachmann uncomfortable over earmarks ban

Republicans appear to have boxed themselves into a corner with their portrayal of earmarks as wasteful spending, as many of them have backed a moratorium on

Troubled mine holds hope for U.S. rare earth industry

China currently controls 97 percent of the world’s rare earth production. The Mountain Pass Mine could change that -- if it can overcome serious environmental concerns.

© Copyright 2021 The Washington Independent All Rights Reserved

Terms & Privacy |