Now that the Supreme Court has decided that the constitutional privilege of habeas corpus has "full effect at Guantanamo Bay," we must turn our attention to how and where we can bring suspected terrorists to trial and what rights they should be afforded.
We suggest the creation of a new court, a domestic terror court, that would give suspected terrorist some, but not all, constitutional protections. Such a court is a practical solution to balancing the interests of liberty and national security.
While many Guantanamo detainees may now challenge the legality of their imprisonment, there has yet to be any decision as to where and how these suspected terrorists will be tried. Currently, about 25,000 "post-9/11 detainees" are being held by the U.S., or on behalf of the U.S., worldwide. This regime of indefinite detention - which has been in place for almost seven years - is immoral, unconstitutional and a violation of international law.
While many agree that we must afford these detainees some sort of trial, there is disagreement on how and where these individuals will be tried. One side maintains that terrorists are criminals and the existing judicial system is fully capable of trying those accused of terrorism-related activity. Another side advocates revamping Guantanamo.
Although our existing criminal justice system tries murderers, rapists and car thieves, terrorists are not common criminals. Nor are they soldiers guaranteed prisoner of war protections as articulated in the Geneva Conventions. They are something else, and require a different solution to trying them in a court of law.
We propose an alternative - the establishment of domestic terror courts. Before we try anyone, we must first determine by precise, objective criteria which detainees actually pose a threat to America's security. Once we determine which detainees do not pose such a threat, we need to figure out a system to release them.
Where do we try the thousands of remaining detainees who actually pose a potential threat? Guantanamo is not an option. International treaty-based terror courts sound attractive, but the unwillingness of the international community to develop a uniform definition of terrorism makes this option impractical.
That leaves Article III courts. A trial by a jury of one's peers is impossible given the number and the nature of the defendants. It will also be impossible in many cases to provide a suspected terrorist with the Sixth Amendment right to confront all his accusers, because many cases are based upon classified information. Under our proposal, domestic terror courts would not provide the defendant with the rights to a jury or to confront all his accusers. Instead, a domestic terror court would enable a prosecutor to pursue a case under such circumstances provided that the classified information is intended to bolster a possible conviction. It cannot be the sole basis of a conviction. It would fall to the judge to determine whether the source (upon whom the intelligence information is based) is reliable and whether the intelligence is valid, viable and reliable. Is this difficult? Of course it is. But judges are up to the task.
While not providing the rights to a jury or to confront all accusers, the domestic terror courts would confer some constitutional rights upon accused terrorists. These rights would include Miranda protections, the right to counsel of the defendant's choosing, remand hearings before the court, the use of sentencing guidelines and the right of appeal to an independent judiciary.
Maximizing individual rights with national security rights is the basis of our proposal. As Justice Anthony Kennedy wrote in Boumediene v. Bush, "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law." We are a vibrant democracy with a truly extraordinary judiciary. Establishing domestic terror courts does not threaten American democracy nor does it insult Article III courts.
It is a practical solution to an issue that has gone unresolved since 9/11. More than 25,000 detainees in indefinite detention is the best proof of the need for domestic terror courts. As Justice David Souter wrote in his concurrence in Boumediene, "(I)t is enough to repeat that some of these petitioners have spent six years behind bars."
Amos N. Guiora is professor of law, S.J. Quinney College of Law, University of Utah. He recently testified before the Senate Judiciary Committee concerning this proposal. Daniel C. Barr is a partner with Perkins Coie Brown & Bain in Phoenix.