Terrorism Cases Demand New Hybrid Courts

The Supreme Court in its recent rulings has given U.S. citizens who are captives in the war on terror, as well as noncitizen Guantanamo detainees, the right to hearings. Now comes the hard part: what kinds of hearings, in what courts, by what process?

The court wisely refrained from answering these questions in detail. Arguments on the specifics had not been presented to the court, and the limited guidance that the justices did offer was more intuitive than analytical. Wisdom aside, this sort of self-restraint is constitutionally required: Article 1, Section 8, Clause 14 gives Congress -- not the judicial or the executive branch -- the authority to make rules for the armed forces, including the initial design of hearings for the prisoners.

This is a task of the utmost delicacy, affected at almost every step by imperatives of due process, separation of powers and military effectiveness. Striking the necessary balance is not simply a matter of defining justice, liberty and security and then trading them off against one another when they conflict. Congress must also make difficult judgments about the facts “on the ground” -- literally, on the unmarked and constantly changing battlefields of this war -- facts that are not accessible to ordinary citizens or even to most public officials or lawyers defending suspected terrorists. Obviously, a political consensus on fair procedures under these unusual conditions is bound to be elusive.

But as it happens, Congress confronted and solved a quite similar problem only eight years ago. In 1996, after the Oklahoma City bombing (by citizen terrorists) raised concerns over further attacks, it created a special Alien Terrorist Removal Court to adjudicate the deportation of noncitizens charged with terrorism on the basis of classified information.

The court consists of five federal trial judges. The government applies to one of them in secret, asserting that there is probable cause that a particular person is a noncitizen terrorist in the U.S. and that an ordinary public proceeding would pose a risk to national security.

If the judge agrees, he commences a proceeding that mixes secrecy and openness. There is a public hearing, and the accused can attend, be represented by counsel, offer evidence and examine and challenge the government’s unclassified evidence.

Classified evidence, however, must be reviewed by the judge in private. He then has the duty to preserve its classification while giving the accused access to as much evidence as possible. If the government wants to rely on the secret evidence, it must prepare an adequate declassified summary of it for the accused. But if the judge decides such a summary would threaten a person’s life or health, the hearing can go forward without it. Either way, the judge adjudicates the case based on all the evidence -- classified and unclassified. If it shows the accused to be a terrorist, the judge must order deportation; if it doesn’t, he must release the accused (except if the judge finds that release would seriously harm national security, in which case he can still order deportation).

The delicate balance of rights and security is most favorable to an accused who is a legal permanent resident because he is entitled to an attorney with a special security clearance, who is authorized to examine and challenge the classified evidence.

The special court has never been used to deport suspects (mostly because the government has been able to use standard procedures), but Congress could apply its methods -- its balance of national security and due process -- to the hearings newly mandated by the Supreme Court.

The hearings could be used to test the government’s underlying factual claims against detainees. Are they enemy combatants or were they merely in the wrong place at the wrong time? Are we still in such a state of war that continued detentions are required? Would defense lawyers really impede interrogation?

Congress could also modify the hearings process within the limits set by the Supreme Court, varying the rules when applied to citizens and various categories of noncitizens, to those held abroad or in the U.S., to emergency and nonemergency situations, to different levels of defense-lawyer involvement, and to particular governmental purposes -- deportation, interrogation, preventive detention or criminal prosecution.

New due-process models like these are essential because none of the traditional categories for the accused -- citizen enemy, prisoner of war under the Geneva Convention, deportable alien, criminal defendant -- fully captures the character and status of many terrorists. Fortunately, Congress’ creation of the Terrorist Removal Court shows not just that useful hybrids can be fashioned but that they are also politically feasible.

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Peter H. Schuck teaches law at Yale Law School and is the author, most recently, of “Diversity in America: Keeping Government at a Safe Distance” (Harvard University Press, 2003).