A hybrid court for a hybrid war.

Author:Sulmasy, Glenn M.

With the pending closure of the detention facility at Guantanamo Bay, Cuba, and the recent decision to try Khalid Sheikh Mohammad in the United States District Court for the Southern District of New York, many questions remain. One key decision is how to adjudicate detainees at the facility, and where they will be held once the facility is closed. Several options are being considered by the Obama Administration. Included among these are the continued use of the military commissions, as well as use of Article III courts. However, neither of these existing paradigms--the military law model or the law enforcement model, respectively--are properly equipped to appropriately strike the delicate balance of military law, intelligence needs, human rights obligations, and the need for justice in this hybrid war. A third approach--a court dedicated to hear cases of international terrorism--is needed: the National Security Court System (NSCS). Legislatively tailored to meet the unique nature of the current conflict, the NSCS not only would address the hybrid nature of this conflict, but would strike a needed balance between the competing interests of U.S. national security and our human rights obligations to the detainees.


Over the past eight years, the military commissions originally ordered by President Bush in 2001, as well as the detention facility at the naval base at Guantanamo Bay, have come under immense scrutiny and criticism as a matter of law as well as policy. Once viewed as the beacon of human rights on the southeastern tip of communist Cuba, Guantanamo Bay has become a lightning rod of criticism both domestically and internationally. On January 22, 2009, President Obama, as promised in his election campaign, ordered the closure of the detention center in Guantanamo Bay to occur in one year. (1)

The Congress, however, in a bi-partisan vote on the May 20, 2009, dealt the President's plan to close the facility a major setback by denying him the eighty-million dollars he had requested in order to close the facility. (2) On May 21, 2009, President Obama responded to the lack of political will for change and delivered an eloquent speech, "Protecting our Security and Our Values" at the National Archives. (3) In the speech he outlined a multi-faceted approach for dealing with the detainees: (1) diplomatic repatriation; (2) use of federal courts to try some; (3) use of military commissions to try some; and (4) vaguely mention of another option for the seventy-five to one-hundred detainees who were, for various reasons, determined to be unable to have their cases tried in either the federal courts or by military commissions--presumably this was a placeholder for potential "indefinite detention." (4)

While the initiatives put forth by President Obama (and remain under active consideration) are a step in the right direction, it seems the administration needs to go a step further. Just as the nation has reacted and updated its response to 9/11 in so many other areas, it must do so in the legal arena as well. Strategically we have created the Department of Homeland Security, broken the "wall" between the CIA and FBI intelligence arms, and created the Director of National Intelligence. Tactically, we have applied the surge in Iraq--and now in Afghanistan--by using new methods to carry out the war(s). It seems logical that we now must update our legal regime to best meet the relatively new threat of international terror posed by al-Qaeda and likeminded affiliates.

As we continue to be mired in the same debates that have occurred since 9/11 about whether or not to apply either of the two prevailing paradigms--the law enforcement model or the law of war model--it is now clear to many that a pragmatic, politically acceptable new system to address the detainee issue is needed.

The unique nature of this conflict requires a unique disposition; not only is the war itself novel, but the al-Qaeda fighters are unique as well--neither warrior nor criminal. (5) The detention and adjudication of these individuals needs to be similarly tailored to the current circumstances by utilizing a court that neither embraces the law enforcement model or the law of war model, but rather a hybrid of these two prevailing paradigms. The National Security Court System (NSCS) provides for the appropriate disposition of Guantanamo detainees called for in President Obama's Executive Order and speech at the National Archives by addressing not only the detention concerns, but also provides a means for prompt adjudication of cases. This proposal provides a framework for the Obama administration to "further the national security and foreign policy interests of the United States and the interests of justice." (6)


Within the U.S., the two existing paradigms--the law enforcement model and the military law model--are not suited for the unique nature of the country's current conflict. As mentioned earlier, using the existing Article III courts is not appropriate for confronting this relatively new threat of international terrorism. The military commissions, while initially employed in 2001 as the best means available for trying the detainees, now appear unworkable or unmanageable for dealing with the alleged al-Qaeda fighters.

Almost seven years after the attacks of 9/11, it is critical to move the debate on detention forward. To date, the advocacy has essentially been divided into two camps: (1) those who view the conflict with al-Qaeda as requiring a law enforcement response and thus civilian courts and the due process ordinarily accorded U.S. citizens; and (2) those who view the conflict as an armed conflict, believing the law of war paradigm to be appropriate for handling the detainees. Unfortunately, neither solution is working effectively. To say the least, this is an extremely difficult problem to address. This new armed conflict of the twenty-first century has shattered all previous notions of traditional warfare. Thus, neither paradigm fits neatly. Components of each paradigm are ideal to implement while others could never be successfully applied in the context of the al-Qaeda detainees.

The armed conflict we are fighting is truly a mix of law enforcement and warfare, and the al-Qaeda fighter is a mix of international criminal and traditional warrior. Viewing the conflict in this fashion--as a hybrid--both of the prevailing paradigms alone is ineffective as a framework for detention and prosecution. While military commissions are firmly grounded in history, statute, and Supreme Court jurisprudence, (7) they are not the most appropriate forum to address al-Qaeda for many reasons.

Taking into account the history of military commissions in wartime, as well as the use of federal courts to try terrorist cases throughout the latter half of the twentieth century, the proposed system described below offers a delicate mix of the two prevailing systems in order to achieve justice in the generational war most anticipate. Jim Benjamin and Rich Zabel have produced and excellent book supporting the use of civilian courts for trying terrorists for Human Rights First, (8) but they have mainly concentrated on cases prior to the attacks of 9/11. The civilian courts alone cannot possibly, as it seems the Obama administration understands, adequately handle the al-Qaeda cases and still achieve the balance between national security and the rule of law. Just as solely using the military commissions has failed, the U.S. must resist the temptation for the pendulum to swing too far back in the other direction. The reality is that the military commissions and the civilian system have failed to best meet the needs of policy makers and the political branches. They are not equipped to properly strike the balance of military law, intelligence needs, human rights obligations, and the need for justice--both perceived and actual.

Critics of the military commissions and the detention of combatants at Guantanamo have increased dramatically over the past five years. Until 2008, we did not have a single prosecution in the seven years since the order establishing military commissions in 2001. (9) Allegations about the harsh treatment of detainees in the detention center--such as the claim by Amnesty International in 2005 that Guantanamo is the "gulag of our time"--have had a major impact on how the commissions are viewed internationally. (10) Reports that the detainees were tortured--particularly after the Abu Ghraib incident in Iraq--added to concerns of government leaders about Guantanamo both domestically and internationally. Greater focus was placed on the operations at the detention center by nongovernmental organizations, the media, and the U.S. government. Some of these allegations were accurate; others were hyperbolic or exaggerated. Indeed, several of the more inflated allegations have been used as propaganda tools by al-Qaeda. (11)

Regardless of whether the allegations have merit or are exaggerations, the impression gained by most people, both domestically and internationally, is that Guantanamo has been tainted and in many ways is irrevocably flawed as a matter of policy. Other studies by nongovernmental organizations have consistently claimed that detainees experience poor treatment, lawlessness, and even torture. (12)


As discussed above, neither military commissions nor Article III courts are properly equipped to strike the delicate balance of military law, intelligence needs, human rights obligations, and the need for justice. Rather, a combination of the two paradigms, a NSCS, a court dedicated to hear cases of international terrorism, offers a reasonable, pragmatic solution out of the conundrum the Obama administration inherited. The system must function as one that achieves justice, attains deterrence, satisfies our human rights obligations, ensures civil...

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