Recently, some scholars and government officials have called for the creation of “national security courts”—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.1 Advocates for these courts claim that they offer an attractive middle ground between adherence to traditional criminal processes and radical departures from those processes.2
For the reasons that follow, we, the undersigned members of the Constitution Project’s Liberty and Security Committee and its Coalition to Defend Checks and Balances, believe that the proposals to create these courts should be resisted. The proposals are surprisingly—indeed alarmingly—underdeveloped. More seriously, they neglect basic and fundamental principles of American constitutional law, and they assume incorrectly that the traditional processes have proven ineffective. The idea that there is a class of individuals for whom neither the normal civilian or military criminal justice systems suffice presupposes that such a class of individuals is readily identifiable—and in a manner that does not necessarily pre-judge their guilt. The idea that national security courts are a proper third way for dealing with such individuals presupposes that the purported defects in the current system are ones that cannot adequately be remedied within the confines of that system, and yet can be remedied in new tribunals without violating the Constitution.
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. We separately address below proposals for a national security court for criminal prosecutions of terrorism suspects and proposals for such a court to review preventive detention decisions, and the reasons why each should be rejected.
