Rather than argue back and forth on the case, however, policymakers must quickly review the implications of the decision and find mutual ground on how best to proceed. The political branches must seek a third way—neither the existing federal courts nor the military commissions but a specialized hybrid court with civilian oversight (often called a national security court)—as the best means to balance the interests of both national security and human rights. Such a federal terrorist court could be structured to better meet the policy concerns of many both in America and abroad: to detain and adjudicate cases against unlawful belligerents in the war on al Qaeda. Boumediene, for all its faults, might just be the catalyst necessary for such action.
Glenn Sulmasy is a national security and human rights fellow at the John F. Kennedy School of Government at Harvard University and an associate professor of law at the U.S. Coast Guard Academy. The views expressed herein are his own.
• For another take on the Boumediene case, read Jack M. Balkin's praise for it.