My proposal for the establishment of a domestic terror court, Where are Terrorists to be Tried - A Comparative Analysis of Rights Granted to Suspected Terrorists, is premised on the need to find a “middle ground” that protects the rights of the defendant while enabling the state to proceed with prosecutions while protecting the source if the case against the defendant is intelligence material based. In essence, I am advocating a re-articulation of the FISA Court so that it would become a terror trial court. My proposal addresses questions regarding interrogation, remand, trial and appeal. The proposal is relevant to what the Israel Supreme Court has called “armed conflict short of war.” In order to preserve the rights of the individual, my proposal emphasizes the absolute requirement for independent judicial review throughout the interrogation and judicial process.The detained individual is neither a POW nor a criminal as traditionally understood; therefore, the appropriate paradigm is what I refer to as a hybrid paradigm, Quirin to Hamdan: Creating a Hybrid Paradigm for the Detention of Terrorists. The proposal seeks to protect the constitutional rights and privileges of the individual, regardless whether he or she is an American citizen. My proposed Court would hear cases of American and non-American citizens, provided they are suspected of committing crimes of terrorism.
The detained individual would be granted Miranda rights at the beginning of the interrogation regardless of where the individual was detained. Should he choose to exercise that right, the interrogation cannot continue, regardless of the suspected offense. In addition, the detained individual would be regularly brought before a judge for purposes of remand. Indefinite detention is an absolute violation of the individual’s rights. The state would need to file a charge sheet against the detainee within the prescribed period of time for criminal suspects.
With respect to the interrogation process, I have argued elsewhere that torture is illegal, immoral, and does not lead to actionable intelligence, The Unholy Trinity: Intelligence, Interrogation and Torture. My proposal does allow the use of coercive interrogation techniques (hood over head, loud and cacophonous music, stress position, sleep deprivation, room modulation temperature) provided that the approval to use these measures is given in writing by the head of the national security service and that there is a physician on site who is not part of the “chain of command.” Interrogation of Detainees: Extending a Hand or a Boot?
With respect to the trial, the defendant would be granted the right to confront his accuser. Unlike traditional Article III courts, if there is a need to introduce classified information (human or signal intelligence based) it would available neither to the defendant nor his counsel. The Court could review the intelligence information and question the source. In addition, the information can assist the Court in determining the defendant’s guilt or innocence. However, a conviction cannot be based solely on this information and the Court must state that its decision to convict was primarily (more than 50%) predicated on evidence openly submitted to court, thereby preserving the defendant’s right to confront his accuser.
According to my proposal, if convicted, the defendant could appeal to the United States Supreme Court regarding both conviction and/or the severity of punishment.
Cross posted from the National Security Advisors Blog.
