Last week, the Wall Street Journal offered an op-ed article detailing the difficulties facing the Obama Administration in closing the Guantanamo detention center: what to do with those detainees and how to handle terrorism suspects captured in the future on foreign battlefields by our military and intelligence services. The article notes that a possible option to solve these problems would be the Congressional creation of a new "National Security Court." Such a court would be a hybrid of federal civilian criminal courts, U.S. military courts and the Guantanamo-based military commissions.
This concept has been around for a couple of years now. It was initially proposed by Andrew McCarthy, the former senior Assistant U.S. Attorney in New York who successfully prosecuted Omar Abdel Rahman, the "Blind Sheikh," as well as the perpetrators of the first World Trade Center attack. The concept appears to have substantial merit. Theoretically, such a court would be able to try cases against terrorist enemy combatants utilizing both overt evidence and, under tightly controlled circumstances, classified intelligence evidence. The creation of a National Security Court would require the proverbial act of Congress.
Some argue such a National Security Court would be a "star chamber" and would fly in the face of traditional American jurisprudence. However, if properly structured and staffed, such a court would go a long way to solve the conundrum of how to deal with enemy combatant terror suspects, many of whom cannot effectively be tried in civilian courts due to the classified nature of key evidence against them. Presumably, within a National Security Court system, defense attorneys would receive appropriate security clearances, and unclassified summaries of classified evidence would be provided to defendants whenever possible. Mechanisms would likely be in place to allow for the secure and, if necessary anonymous, testimony of intelligence agents and their "assets." Does all this sound a bit too fantastic to really work? It might be a surprise to learn the United States already has a workable, if not working, version of a National Security Court.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) created significant revisions to the Immigration and Nationality Act (INA). Among those revisions was the creation of Title V of the INA. That provision created the Alien Terrorist Removal Procedures and the Alien Terrorist Removal Court (ATRC). The ATRC was the result of a bi-partisan Congressional effort supported by then-President Bill Clinton. The ATRC changed the nature of potential deportation (removal) adjudication substantially, but in a limited and controlled fashion.
Before the ATRC, all formal deportation cases resided in the Immigration Court system that is rooted in Title II of the Immigration and Nationality Act. That court process requires, for the adjudication of the merits of deportation charges, that the Government present overt evidence in open and adversarial court proceedings. Classified, or secret, evidence can be utilized in Title II Immigration Court proceedings only under very limited circumstances, where it is presented in-camera and ex-parte to the court, for the court to render decisions on certain immigration relief issues. Those relief issues include release from custody in pending deportation proceedings and the various kinds of discretionary relief from deportation, like political asylum.
In contrast, regular Immigration Court proceedings require the underlying substantive deportation charges be proven with overt, publicly scrutinized evidence to which the alien respondent (defendant in deportation cases) and his/her attorneys receive full access. The ATRC, however, changed that process for what was then the significant but small population of aliens suspected of being involved in terrorism and terror support activities. The ATRC process can be invoked only if it is determined - and that determination literally requires a decision by the U.S. Attorney General - that the case cannot be handled in regular Immigration Court proceedings. That situation would virtually always be when key evidence is classified - obtained by intelligence agencies or other highly covert sources.
The ATRC provides mechanisms for classified information to be used as evidence to adjudicate the merits of the underlying deportation charges. That is done, however, under notably limited and tightly controlled procedures. Whenever possible, unclassified summaries of classified evidence are to be provided to the respondent and his/her attorneys. Defense attorneys may be granted security clearances so they can have access to classified evidence and the respondent and his/her attorneys may challenge the evidence against him/her. The judges who sit on the Court are selected by the Chief Justice of the United States (Chief Justice of the Supreme Court), and all the judges receive appropriate security clearances. As previously stated, only cases certified by the Attorney General, after a multi-level and multi-agency review process, can be heard by the Court. There is a specific adversarial process allowed in the court proceedings and special, yet still adversarial, appellate proceedings are permitted.
The ATRC has been in operational existence since about 1997. As noteworthy as this "national security" court for deportation cases might seem, ironically, not one case has been tried before it. In the hue and cry of the late 1990s over the use of "secret" evidence in immigration proceedings, the same Clinton Administration that supported the creation of the ATRC chose the politically expedient avenue of not sending any cases to it. Similarly, if perhaps inexplicably, the Bush Administration did not refer any cases to the ATRC, even after the 9/11 attacks. Even while the Bush Administration and the Congress toiled over the creation of the Guantanamo military commissions, wherein classified evidence could be allowed to prosecute detained enemy combatants who might face the death penalty, no deportation cases were sent to the already duly constituted ATRC.
The inactive ATRC does not mean its underlying concept is without merit. Its lack of utilization is likely more the result of misplaced political correctness at the highest levels of our political leadership. If the creation of a new National Security Court is to be seriously considered, Congress and the new Administration may do well to look at the ATRC as a model. Many of the procedural and operational issues that might relate to a National Security Court have already been addressed with the Alien Terrorist Removal Court.
Bill West is a consultant to the Investigative Project on Terrorism. He retired in 2003 as chief of the national security section for Immigration and Customs Enforcement (ICE).