Stuart, you cogently (and provisionally, I understand) lay out the case for a new national-security court. I confess the idea makes me feel more nervous than reassured. To begin with, Congress doesn’t have a great record here. Its past efforts to muck around in the Guantanamo litigation—the Detainee Treatment Act of 2005, the Military Commissions Act of 2006—have only made the muck deeper. In twisting traditional habeas protections, they left the Supreme Court a big mess to clean up. I know that now we’re talking about a different, more Democratic Congress. But all I have to do to stay suspicious is think back for a moment to the overhaul of surveillance law last summer, with its expansive and permissive stance toward domestic-to-international wiretapping without a warrant. When Congress fools around with the courts and procedural protections, defendants almost always emerge worse off (Exhibit B: federal sentencing laws, with their ever-loving mandatory minimums and lengthier punishments).
The second reason I’m skeptical about the wisdom of a new detention law is that we haven’t yet sufficiently tested the regular old federal court system. As Marty Lederman has persuasively argued on Balkinization, we should give the processes we already have in place a chance to work before we resort to special measures. Another Lederman point: There are salient provisions of the Uniform Code of Military Justice that we can employ, without any Gitmo-only legislation. We haven’t really tried this route yet.
So far, when Guantanamo cases have actually come before federal judges, despite all the Bush administration’s efforts, they have taken steps—like closing court and keeping documents sealed—to protect classified information and other national-security interests. If the judiciary has also dismissed the government’s case against a particular set of detainees as impossibly thin, as Republican-appointed Judge Richard Leon did last month, well, that’s what I’d like to think we call justice.
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