Mukasey’s Homeland Security Court

One of the requirements for a totalitarian police state is a system of kangaroo courts, star chambers which operate in secret and in parallel to the existing judicial system to convict political prisoners of pretended crimes against the state, which could never survive in the regular courts. And former judge Michael Mukasey, nominee for U.S. Attorney General to replace Alberto Gonzales, has proposed that the United States adopt such a system of courts.

In a little-noticed opinion piece in the Wall Street Journal in August, Mukasey argued that terrorism trials in regular courts exposed too much information to the enemy, undermining national security. The existing legal system, he says, is “strained and mismatched” to the task of dealing out justice to those accused of terrorism.

Mukasey cites two proposals, one by former deputy attorney general George Terwilliger to authorize detention of suspects before they have committed any crime, and one by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism to create national security courts which would try suspects — foreigner and American alike — in secret. The McCarthy-Velshi proposal would apply to “international terrorism and other national security issues.”

Legal scholar Glenn M. Sulmasy was the first to propose a national security court to try suspects in secret. Sulmasy’s proposal would create National Security Courts, loosely based on courts-martial, which operate in secret, where defendants cannot obtain their own counsel unless the government agrees to grant the attorney a security clearance, and where defendants are tried at U.S. military bases and detained, imprisoned and executed at U.S. military brigs.

Most importantly, anyone, American or not, could be tried in a National Security Court, or as they seem to be called these days, Homeland Security Court.

“Another need for [homeland security] courts is to deal with the latest issues,” Sulmasy explained during his discussions with “US citizens who turn their backs on the government and seek to overthrow it by engaging in jihad right now are treated differently than jihadists from other countries. A homeland security court would remove this disparity. . . .”

Commander Sulmasy, who’s been interviewed at length by in recent weeks, is the first permanent commissioned military law professor (appointed by President Bush in 2003) at the Coast Guard Academy, where he is an associate professor teaching international, constitutional and criminal law. He’s also a judge advocate, served on the faculty of the International Law Department at the US Naval War College and next year will be a National Security and Human Rights Fellow at the John F. Kennedy School of Government. He’s written extensively in law journals on the legal challenges of adjudicating captured terrorists. —

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It’s clear that, in the short term, some legitimate system is needed to deal with people who engage in hostilities with the United States. It’s not at all clear that a separate and parallel judicial system, which would sweep up ordinary innocent Americans accused of terrorism and other undefined “national security issues,” is the right answer.

Remember Guantanamo Bay, chock full of innocent people who were ordinary farmers one day and being waterboarded the next, because some bounty hunter wanted an easy $5,000? The government admits that of all the people it’s released from Guantanamo, 10 percent returned to the battlefield. What of the other 90 percent, who we can only presume were innocent, whose lives were disrupted for years by being in the wrong place at the wrong time?

Federal district court judge John Coughenour, who presided over the trial of Ahmed Ressam, who attempted to bomb Los Angeles International Airport in the so-called millennium bombing plot, says that a separate judicial system is unnecessary.

It is regrettable that so often when our courts are evaluated for their ability to handle terrorism cases, the Constitution is conceived as mere solicitude for criminals. Implicit in this misguided notion is that society’s somehow charitable view toward “ordinary” crimes of murder or rape ought not to extend to terrorists. In fact, the criminal procedure required under our Constitution reflects the reality that law enforcement is not perfect, and that questions of guilt necessarily precede questions of mercy.

Consider the fact that of the 598 people initially detained at Guantánamo Bay in 2002, 267 have been released. It is likely that for a number of the former detainees, there was simply no basis for detention. The American ideal of a just legal system is inconsistent with holding “suspects” for years without trial. . . .

If confirmed, Judge Mukasey will join Michael Chertoff as another esteemed former jurist in the executive branch facing the formidable task of keeping our nation safe from terrorism. The distinction between the roles of judge and law enforcement officer should not be lost in the transition. Our courts ensure an independent process; they do not enforce the prerogatives of law enforcement. Any proposal that would blur this distinction would compromise a bedrock principle of government that has defined this country from its inception. — New York Times

But merely providing a system to try suspected terrorists in what could easily become a kangaroo court, a complete mockery of due process in which the innocent are convicted right along with the guilty, is just the beginning.

Terwilliger would like to see a national security court that could authorize preventive detention. So a judge could lock suspects up to stop them from committing a terrorist act — even if prosecutors can’t show that they’ve already committed a crime. Britain has a system like that, but the United States does not.

“The government will find a way to identify people who are dangerous and need to be incapacitated to neutralize the threat that they represent, because the people will demand that,” Terwilliger says.

He says the question is whether the government will incapacitate people by bending the rules of the system we have now, or by working within the rules of a new system that everybody signs on to. — National Public Radio

The Homeland Security Court, as effective as it might be for prosecuting real terrorists, would also open the way for innocent Americans to be picked off the streets and suffer the same treatment as innocent foreigners.

You won’t have to be brown skinned, wearing funny clothing, and praying to the east in order to be thrown into a military brig, given a secret trial where for the government justice is secondary to winning, and disappeared forever. These Homeland Security Courts, or National Security Courts, once established, will begin growing just like any other government program. It won’t be long before the government begins to expand the categories of people who are eligible for the secret star chamber process until virtually anybody could be disappeared for saying the wrong thing in public.

It can happen here. You could be next. Our system of government doesn’t make it impossible, only somewhat more difficult than in other countries. Innocence won’t protect you. It won’t even matter anymore.

And, as Judge Coughenour says, “This is a price too high to pay.”

Mukasey’s nomination was approved 11-8 Tuesday by the Senate Judiciary Committee and has gone to the full Senate for confirmation. He faced harsh criticism over his refusal to state that waterboarding of terrorist suspects at Guantanamo Bay was torture and therefore illegal under U.S. law. The Senate is expected to vote as early as Thursday.

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