Deborah has thrown down a gauntlet to me: "Any court we pick-commissions, courts martial, federal courts, some new system-is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?"
And I am going to cop out: yes and no.
Deborah's question is a fair one-and at least for me, it has no simple answer. Here's a sketch of my complicated answer, which I flesh out more fully in my forthcoming book, Law and the Long War: The Future of Justice in the Age of Terror .
I agree that there is no current institution better prepared than the federal judiciary to try terrorism cases, but this is low praise indeed for the federal judiciary, and it does not imply that the federal judiciary is well-prepared for the job. To say that an institution is better prepared than the military commissions-which have to date convicted exactly one person, and him through a plea bargain-is hardly a commendation. If the question is whether I regard the federal courts as the optimal environment for trying terrorist cases, the answer is no. This is why I believe that we need a hybrid institution, mixing the prestige of the federal courts with some of the flexibility of military commissions on rules of evidence and handling of classified information. Call it a national security court or call it something else. But it looks exactly like neither of the systems we have today, though it draws on elements of both.
To cite the group of cases the government has actually prosecuted in federal court as evidence that the federal courts are up to the job is to stack the deck in the debate. Nobody doubts that the federal courts are up to the job in some cases , not even the Bush administration. To look only at the universe of cases prosecuted in American courts is to study a preselected sample of cases carefully chosen by prosecutors for their amenability to trial in U.S. federal courts . This is, in other words, an expression with the wrong denominator. The right denominator-much harder to get a handle on-is the universe of cases in which the government would reasonably seek to use the criminal law to neutralize or punish a detainee. The evidence that the federal courts are up to this task is, in my view, decidedly unimpressive-particularly if, as Deborah also advocates, we're going to rely on the criminal law as the sole source of authority to detain people in the war on terrorism.
The failure to establish a viable trial regime for terrorism cases has been one of the current administration's most startling failures. If our answer to that failure, however, is a singular reliance on federal court trials, I make the following prediction: We will see very few trials compared with both what we want as a society and what we could get in another legitimate system. And we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe.