Glenn Sulmasy
In his new book, The National Security Court System: A Natural Evolution of Justice in an Age of Terror (Oxford University Press, August 2009), U.S. Coast Guard Academy law professor Glenn Sulmasy proposes a new way to try detainees in America's war on al-Qaida. A supporter of the use of military commissions until 2004, Sulmasy says he came to realize how they could never be accepted as legitimate. At the same time, the prospect of trying all Guantanamo detainees in civilian courts presents too many security risks. Just last week, the Obama administration announced that it would rely on Bush-era policies to continue to hold about 50 detainees without trial because they are a continuing danger to national security but cannot be brought to trial, in some cases because of harsh interrogation techniques used against them to gather evidence. Commander Sulmasy, a judge advocate and leading expert on national security law, offers a history of America's military court system and an innovative -- and controversial -- blueprint for a new court system that can help push the Guantanamo debate beyond the stark choice between military commissions or civilian courts.
Why do we need a National Security Court system?
The U.S. updated itself to fight this war on al-Qaida strategically: We created the Department of Homeland Security, we created the Director of National Intelligence, we had the 9/11 commission. Tactically we've applied the surge effectively in Iraq and presumably there's some movement to doing that in Afghanistan. We've updated these different areas. The one area we really haven't updated is the law. Things have changed and we have to evolve.
The idea of the project is to have a framework established that all countries can look to when dealing with counterterrorism and the rule of law. We've been trying to jam a square peg in a round hole using the military commissions, and my fear is that if the pendulum swings too far back towards just pure civilian courts we're going to have problems. A lot of the time it seems we're trapped in trying to apply the Geneva Conventions. In creating a new court system, we're trying to have an appropriate framework for dealing with these nonstate actors that aren't signatories. The U.S. should be leading the call for a conference to look at bringing parties together and establishing consensus.
You finished writing the book just after Obama came into office this January and promised to close the detention camp at Guantanamo Bay within a year. How have the changes since the end of the Bush administration affected the issue?
It's not just the 230 detainees left at Guantanamo, that's just one piece of the problem. I think we have to look at [the U.S. military base in] Bagram, Afghanistan. What do we do with the inevitable captures in the future and how do we treat those captured on the battlefield -- the traditional battlefield meaning Afghanistan and arguably parts of Pakistan -- but also those that we capture that are ready to engage in armed conflict against the U.S. when they're in other countries outside of the theater of operations, which makes it even more complex? I believe that a hybrid court is a solution, and I think we need to A) close Guantanamo, and B) bring the alleged al-Qaida fighters into the U.S. in some system that will garner legitimacy for the process, both domestically and internationally.
Where I think the previous administration may have been miscued was presenting things backwards, if you will. The presumption has to be not holding detainees indefinitely then maybe try them, but actually try everybody and in certain cases, if there's a real need to hold somebody and the executive as commander-in-chief in time of war against al-Qaida does view this person as unable to go, then that's something to be debated on a very individual basis, not the norm. If there's an exception to be made in the case that's put out where someone has valuable information that's going to prevent massive loss of life in one of our cities, then I would suggest the commander-in-chief as the leader would make that decision knowing that he might be violating our treaty obligations, rather than saying we can do it all the time. The presumptions have to be flipped, and that's what I think we're trying to do here.
