By Glenn Sulmasy
The decision to move the trial of Khalid Shaikh Mohammed (KSM) and his four compatriots from a New York City federal courthouse highlights the struggles associated with detaining and trying the al Qaeda fighters. Needless to say, many businessman, the families of the victims of 9/11, Wall Street Executives and realtors in New York are extremely pleased with the decision. Recent estimates placed the cost of having these trials in Manhattan at $2.5 million a year. Policy makers, however, must refrain from declaring the change in venue a “victory” or “loss” for one side or another, but rather view it is a catalyst for creating real and lasting change in how we approach these terribly complex cases.
Nearly eight years since beginning the United States War against al Qaeda, the nation remains mired in the legal ambiguities associated with these fighters. The debates still rage as to whether to employ either of the two prevailing paradigms – use the civilian courts or the military commissions? Neither system seems to ever fit neatly. The beginning of the trial in NYC of alleged al Qaeda operative, Dr. Affia Siddiqui, has only further exacerbated the divisions within policy and legal circles.
Rather than remaining embroiled in the debates of the past, Congress needs to step forward and provide one option for the detention, interrogation and trial of these unique 21st century fighters. Since the armed conflict is itself a hybrid (a mixture of law enforcement and traditional warfare), and the fighter himself is a hybrid (a mixture of international criminal and warrior), it seems logical for policy makers to now create one system of justice best suited for the al Qaeda fighters – a hybrid of the military commissions and traditional federal courts – a National Security Court System (NSCS). Creating such a system would also ensure that there would be no decrease in the credibility and legitimacy of either of the existing systems.
Although the devil will be in the details of such legislation, one would envision: the detention and adjudication of the cases to be held on high security military bases; the system coordinated by the Department of Justice rather than the Department of Defense; the creation of Article III judges who are experts in national security law to oversee all aspects of the system; the rules of evidence to be roughly the same as those employed within the military commissions; permit intelligence professionals the time necessary to glean as much current information available from a given detainee as is reasonable; there would necessarily be a reduction in the expectations afforded by the exclusionary rule; and a sunset provision to ensure any potential abuse of such a system would be mitigated.
The change in venue of the trial of KSM and the four other high value detainees offers the possibility for creating a realistic, balanced, alternative to the prevailing paradigms. It is critical now to update our systems if justice and answer the call by creating a bi- partisan, pragmatic, and long term solution to this conundrum.
A National Security Court System will best answer the needs of ensuring the security of the nation while still upholding our longstanding commitment to the Rule of Law. It will move the national debate forward, be secure for the citizens, be relatively inexpensive, bring justice for the families of the victims of 9/11, as well as remove the opportunity for “forum shopping.” Perhaps most importantly, the NSCS will resolve the cases that remain from Gitmo and ensure a permanent, fixed system is available for those at Bagram, Afghanistan and the inevitable future captures in this generational war.
Glenn Sulmasy is the author of “The National Security Court System – A Natural Evolution of Justice in an Age of Terror” (Oxford University Press)