Finding a Better Way to Prosecute Terrorists

At the center of the controversy surrounding the closing of the Guantánamo Bay detention center is what to do with the suspected terrorists once the prison camp shuts in January. Trying detainees before military commissions or in federal courts isn't the solution, argues Capt. Glenn Sulmasy, a professor of law and judge advocate at the U.S. Coast Guard Academy. In The National Security Court System, Sulmasy proposes a separate, hybrid court system, overseen by civilians, with detention, trials, and hearings held on U.S. military bases. He recently spoke with U.S. News about his proposal, President Obama, and why appearances matter in the battle against al Qaeda. Excerpts:

Why did you write this book?

I wrote the book predominantly having been a supporter of military commissions at the outset and thinking it was the right way to go. As time went on, it became clear to me that we were trying to jam a square peg into a round hole using these. We've adapted, morphed, and changed strategically in terms of starting the Department of Homeland Security after 9/11. In 2003, we created the director of national intelligence. We had the 9/11 commission, and then tactically we're changing how we're fighting these people, how we applied the surge. One area where we hadn't looked at fresh ideas thoroughly is the law.

What makes military commissions and our federal court system inadequate?

Military commissions, first and foremost, have been used throughout our history for traditional armed conflict where there is a minority of people who don't engage or abide by the Geneva Conventions and the law of war, and therefore we can prosecute them in small numbers. In this case, the war we're fighting, it's reversed. Secondly, . . . perceptions matter in 21st-century warfare, and the reality is that we have been unable to garner international support and domestic support, having human rights organizations like Amnesty [International] refer to Guantánamo, a U.S. military facility, as being the gulag of our times. If we allow the pendulum to swing too far and just use purely civilian courts, we have evidentiary problems, we have issues about juries, how we're going to find unbiased juries to sit in judgment. But perhaps the most important to me is the potential for bleed-over. We would have to relax the evidentiary standards in our civilian courts, and that's a danger because of the bleed-over from using this as an excuse to reduce what we hold dear in our constitutional protections. What's to say if this is a national emergency, the drug war isn't a national emergency?

How would the national security court system you propose solve the dilemma over closing Guantánamo Bay ?

We're using more civilian entities like local police, like the FBI, the CIA alongside the military than ever before. So if you have a hybrid warrior, a hybrid fighter, in a hybrid conflict, it seems natural that we would look to something fresh like a hybrid court system. The debate over Guantánamo Bay is often divided along party lines. We have to move away from the idea of calling those that support the civilian courts soft on terrorism. Similarly, those that are supporting the law of war regime, we shouldn't be calling them war criminals.

Why is closing Guantánamo a good idea?

Guantánamo Bay has never achieved its intended results. The intent, I believe, by the Bush administration was to have rapid trials. When you have only three trials in military commissions over a period of seven years, the support and credibility is eroded, both nationally and internationally.

Why is perception important in dealing with international terrorism and Guantánamo Bay?

We have 24-hour news media that cover everything, people have access to information almost immediately, and it can be spun. We have to be conscious that anything we do in this fight has international implications. We're not fighting against one country. We're fighting against non-state actors that represent over 50 nations, and what we want to be able to do is garner international support. So it's almost beyond perception because it's almost collaborative, working together and sending the signal that we understand that if this is an international fight against terrorism then we need our partners to align with us and join with us. For us to be able to lead in the 21st century, we have to consider the use of our international partners and not just remain locked in an idea of unilateral responses and unilateral decisions.

You say the 2008 Supreme Court ruling Boumediene v. Bush has thrown national security law into chaos. Why?

It was providing one constitutional right to the detainees, and that constitutional right was the right of habeas [corpus]. But what they didn't do in that decision was provide any sort of guidance for how this is supposed to work. So what you have now is just judges and federal district courts in Washington, different ones making decisions sort of in a haphazard format. When you talk about prisoners of war in traditional armed conflict, they don't have any habeas rights. They're held in a detention facility until the end of hostilities. Boumediene gave more rights to the detainees in this process than a prisoner of war who abides by the laws of war in traditional armed conflict.

Why should the detention and trials of suspected terrorists be held on U.S. soil?

That goes back to the idea of promotion of the rule of law and showcasing our wonderful system of justice. We would have very fair trials. It's important from a diplomatic perspective that if we won't allow any detainees onto our soil at all, we run the risk of hurting ourselves in terms of trying to repatriate those that we know are not a threat.

What's your response to critics who say that moving these detainees to U.S. soil would be dangerous?

Gosh, we have detention facilities all over, high maximum-security prisons. I don't hear many people in the community being assaulted or someone escaping from [these] prisons. So I think we have to be realistic about not engaging in hyperbole . . . that it's going to be some sort of a danger to American citizens.

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