A Federal Terrorism Court
Since the 9/11 attacks, the United States has struggled to find the right way to try suspected terrorists. Harvey Rishikof, a professor of law and former chair of the Department of National Security Strategy at the National War College in Washington, D.C., has authored a new Progressive Policy Institute, “A Federal Terrorism Court,” that proposes a new means of handling these complex cases:
“Modern terrorism raises myriad questions for our traditional institutions of government and justice: Is a terrorist action a criminal violation or a political act? Should terrorism be prosecuted under the laws of armed conflict or the criminal-justice system? Is terrorism primarily a domestic or foreign issue? Do international conventions govern the process of confinement and interrogation of terrorists? Does it make a difference if the victims of terrorism are combatants or non-combatants? What is the appropriate “due process” for different categories of detainees, unlawful belligerents, and terrorists?
“The current administration, Congress, and the federal courts have struggled with these questions-and many others like them-for the last six years. The answers they’ve come up with so far have satisfied neither the American public nor the international community. …
“[T]errorism cases are compromising our traditional court structures. Our current court system is ill equipped for the difficult task of trying quasi-international conflicts with non-state actors who plot, abet, and carry out attacks against civilian targets. We need to consider new approaches that fit the challenges of our times.
“One such approach would be the establishment of a secure and specialized Federal Terrorism Court dedicated to these cases. The thrust of the idea is to have a dedicated set of federal trial judges working with an expert bar of federal and military prosecutors and defense counsel-all with high-level security clearances. Such a court could accommodate the particular challenges of prosecuting terrorism cases in a manner wholly consistent with the Constitution, the common law, and relevant statutes. This would be no sealed-off Star Chamber; trials would be open to the public unless there were truly compelling reasons to limit access in a particular case. Such openness would help give our people and our allies the necessary proof that the United States is reasserting its national identity as a champion of human rights and due process.
“We already have specialized courts in the federal system for particularly complex issues requiring unique knowledge, including bankruptcy, patents, copyrights, tax, and international trade. In short, we have ample precedent for a court dedicated to vital, complicated issues requiring the development of substantive and procedural expertise.”