If pressed to pick the more intellectually honest and articulate figures in the current debate surrounding the national security state in America, two of the first names I would most likely cite would be Neal Katyal of Georgetown – who handled the defense for Hamdan and Jack Goldsmith of Harvard, who spent key periods working inside the Department of Defense and who headed the Office of Legal Counsel at the Justice Department shortly after issuance of the famous “torture memoranda.” They represent squarely opposed viewpoints, but they approach the issues with a common commitment to constitutional traditions and the rule of law. And today they have jointly authored a very important piece in the New York Times which constitutes a first, vital step towards a depoliticized national dialogue on national security issues.
It starts with a recognition that the policies which Goldsmith helped to craft have been calamitous. Indeed, that is an objective fact—no longer open to serious discussion or debate:
Nearly six years after 9/11, the government’s system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts.
But it would be a grave error if this fact were taken simply as the basis for scoring political points against the GOP and President Bush. What we need instead is an engaged, serious dialogue on an alternative policy. Katyal and Goldsmith offer a proposal which will, I believe, figure as an essential cornerstone of such a debate:
A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.
Such a court would have a number of practical advantages over the current system. It would operate with a Congressionally approved definition of the enemy. It would reduce the burden on ordinary civilian courts. It would handle classified evidence in a sensible way. It would permit the judges to specialize and to assess over time the trustworthiness of the government and defense lawyers who appear regularly before them. Such a court, explicitly sanctioned by Congress, would have greater legitimacy than our current patchwork system, both in the United States and abroad.
This proposal is likely to be viewed as anathema to civil libertarians. But that would be foolish. Nations around the world have maintained the essential features of a liberal democratic society while keeping a regime of preventive, or investigatory detention. Indeed, this has long been the norm in civil-law regimes, and the greater skepticism of the common-law countries has never been absolute. America has been something of a proud outlier on the issue.
The focus in the coming national debate should be on the evidentiary showing based upon which preventive detention can be ordered (let’s take it as a given that it should not be available on the executive’s whim for other than the briefest period, particularly considering the massive abuse that has been demonstrated over the last six years, but on the other side the cumbersome U.S. criminal justice rules on evidence would not apply), and the maximum term available. This is where the debate has focused in Britain’s House of Lords for the last four years, for instance. And on the continent, what is to us so controversial, has never been an issue. The forthcoming Lex Schäuble in Germany, reviewed in the current Spiegel, for instance, includes a framework for targeted killing, the accumulation of data on passports, the use of a Trojan virus to inspect computers without warrant and other measures, but does not discuss preventive detention because that has always been available.
Of course, the English-speaking world has had some very unpleasant experiences with national security courts. The Founding Fathers were still acquainted with them and hated the memory. The trick here is to draw on that and more modern experience to assure that any new institution gives a high priority to justice alongside of state security. The Katyal-Goldsmith column builds sensibly towards a new first step.