Close Gitmo, Open the National Security Court

In the current issue of Foreign Affairs, Ken Roth of Human Rights Watch presents the maximalist position of civil liberties advocates when it comes to the War on Terror: He argues not only that we should close the detention facility at Guantanamo (which I agree with), but also that we should either try suspects in the criminal courts under standard criminal procedures or else release them. That’s going a bit too far for me, or, I suspect, most other Americans. To see why, consider this AP report:

Al-Arabiya television reports that a former Guantanamo detainee carried out a recent suicide bombing in the northern Iraqi city of Mosul.

Because it was “only” Iraqis who were killed, this apparent attack by a former Gitmo detainee will not cause much uproar in the United States. But imagine if he had struck not in Mosul but in New York, Paris, or London. Then it would be a different story. To avoid such a dire scenario, we need to have a way of dealing with detainees that goes beyond the normal safeguards of the criminal justice system.

Jack Goldsmith and Neal Katyal–the former a conservative law professor who served in the Bush Justice Department, the latter a liberal law professor who represented one of the Gitmo detainees in a successful appeal to the Supreme Court in 2006–have proposed just such a system: setting up a federal National Security Court run by specially selected federal judges. Roth argues against this idea, but it makes a lot of sense to me.