Law Professor Proposes 'Hybrid Court' for Trying Detainees

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.

Is it too late to implement a hybrid court system for the current detainees, many of whom have already spent years waiting for trial?

I don’t think so, I think this is the right system for us to use. Now there are problems with folks that have been there and not had any process, but I think if we have a hybrid system that captures a mixture of both military commissions and our Article III system with civilian oversight, we’ll immediately garner some of that legitimacy we’re looking for. The key is not to bring Guantanamo into the U.S. That’s why my system is unique in that it creates a court system that balances human rights and national security. One of the ways to do that is by trying to have a presumptively adjudicatory system and I think that’s critical, trying them within a year — from the point of capture, within a year we initiate some judicial proceedings in order to ensure we don’t keep people indefinitely. The real stain on Guantanamo is that there have only been three trials in 7, 8 years — that makes people uncomfortable, and it almost gives the impression that we’re just supporting holding people until the end.

This unique threat that we’re facing is really a hybrid warrior and a hybrid war and thus requires some sort of a hybrid system to best accomplish the task. This isn’t something that is new. We have unique niche areas like bankruptcy, like tax courts, like immigration courts, so this isn’t necessarily as revolutionary I think as some might perceive it to be.

In your book you discuss the creation of the torture memos by John Yoo and a team of government lawyers, only two of whom had any experience with national security law. We’re now dealing with the fallout of their actions. Is there a large enough group of lawyers out there who have knowledge and experience in both military justice and intelligence law who can practice before and run these courts?

I think there is. We have now the National Security Division within the DOJ. Over the last decade, for better or worse, “national security law” is now a genuine practice area, and you have a growing group of people who have exposure and experience and have delved into these issues. Some of them may have been constitutional lawyers or con law profs, intelligence law professionals — and you have quite a considerable amount of expertise in the JAG corps.

You also thanked John Yoo in your acknowledgments and point out that he’s one of the only lawyers who has stood by his opinion this whole time. Is he unfairly maligned?

You may not agree with a lot of his ideas or thinking, but there’s a whole layer of people above him. And if you look at the organizational chart, he’s not at the top. I think he believes what he’s written. Obviously I don’t agree with torture in any form or fashion. But I think you have to look and say he is the only one that has continued to carry on that cause. Arguably some of it he brings on himself. But I think there has to be something there that at least he has not run away from his views or hidden from this spectacle of what’s gone on. The other folks above him in the chain of command have not necessarily done so. It seems kind of peculiar that he is the only one who has people protesting outside of his classroom, or outside of his house. I think there are times I’m certain that he probably thinks twice about having taken that position.

You present a novel concept of the death penalty in your system — it’s an option for some convicts, but not all.

We’re trying to accommodate on the death penalty issues, saying if they’re from a country of origin that allows the death penalty, then it could be on the table. If they’re from the EU, where the death penalty is a human rights violation, we really can’t entertain that.

But the one issue that is not in the book, which I regret, is sunset provisions. One of the areas that people legitimately criticize in my proposal and others is that, gosh, you know, what happens 10 years from now if another administration’s in and they used this NSC for someone who speaks up against the government, or does something that’s just exercising their First Amendment rights, isn’t there a danger here? And I think those are concerns we have to be aware of, we need to let any legislation drafted be sunsetted after five years.

We want to regain that notion of the shining city on the hill which we did lose, right or wrong, over the years. And one way to do that is by being pragmatic, being practical, but still not compromising our ideals. These are just ways to do that.

Interview has been edited for style and length.