Visiting Scholar Jack Landman Goldsmith

Nearly six years after 9/11, the government's system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts.

The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.

Such a court would have a number of practical advantages over the current system. It would operate with a Congressionally approved definition of the enemy. It would reduce the burden on ordinary civilian courts. It would handle classified evidence in a sensible way. It would permit the judges to specialize and to assess over time the trustworthiness of the government and defense lawyers who appear regularly before them. Such a court, explicitly sanctioned by Congress, would have greater legitimacy than our current patchwork system, both in the United States and abroad.

Criminal prosecutions should still take place where they can. But they are not always feasible. Some alleged terrorists have not committed overt crimes and can be tried only on a conspiracy theory that comes close to criminalizing group membership. In addition, the evidence against a particular detainee may be too difficult to present in open civilian court without compromising intelligence sources and methods. And the standards of proof for evidence collected in Afghanistan might not meet every jot and tittle of American criminal law.

A Congressionally sanctioned system of preventive detention, which would supplement the criminal process, is far from unprecedented. The Supreme Court has recognized that the president can detain traditional enemy combatants during wartime. The court has also long approved preventive detention for people who are dangerous to society--the insane, child molesters, people with infectious diseases, and the like--but who have not committed crimes.

Congress should draw the national security court's judges from a pool of current federal judges, the same process used for the special court we already have to issue intelligence warrants. The court would have a permanent staff of elite defense lawyers with special security clearances as part of its permanent staff. Defense lawyers trained in the nuances of taking apart interrogation statements, particularly translated statements, are crucial because often the legal proceedings will involve little else in the way of evidence.

Congress should require the national security court to make sure that there is a continuing rationale to detain people years after their initial cases were heard. Congress should also insist on rights of appeal for detainees, ensuring scrupulous review by a second layer of specialized, repeat judges who will keep the initial judges on their toes. And consistent with the values enshrined in the Constitution's equal protection clause, Congress should insist that the same rules apply to citizen and non-citizen terrorist detainees.

Detainees, however, need not be given the full panoply of criminal protections. A detainee may not be able to meet his lawyer right away, particularly if interrogation has just begun. A terrorist captured in Afghanistan should not be able to seek release because he was not read his Miranda rights. A national security court, while it would operate in public, would not have the same public and press access as an ordinary criminal trial.

We already have specialized federal courts to deal with matters like bankruptcy, taxes and patents; the case here is far more compelling. In the past, Americans might have hoped that a national security threat would abate over time, and so the pressures on the civilian courts, whatever they were, would subside. Today we have no such luxury. We must create sensible institutions for the long haul.

Jack Landman Goldsmith is a visiting scholar at AEI. Neal Katyal is professor of law at Georgetown University.