Legal Commentary

[An edited version of this post also appears at National Security Advisors.]

Jonah beat me to the punch re: a post on the new Super Bowl champions, which leaves me to talk substance on this dreary Washington Monday morning... I was very lucky to play a part in last Friday's conference here at WCL asking "Do We Need a New National Security Court?", where the star was undoubtedly the keynote speaker, Judge Leonie Brinkema of the Eastern District of Virginia, who has presided over the Moussaoui and Al-Timimi cases, among others.

I moderated the last panel -- on whether we need a new national security court for criminal prosecutions of suspected terrorists, and wanted to focus on one suggestion made by one of the questioners--one of the conference co-organizers, Ben Wittes from the Brookings Institution. Ben's question was simple enough: Don't we already have such a national security court, under the guise of the military commissions set up pursuant to the Military Commissions Act of 2006 ("MCA")?

After reflecting on that question for a minute, I sort of hedged, and suggested that I thought "it depends." Why? Details after the jump... 

So, the basic premise of Ben's question was that the MCA, in effect, sets up a national security court by giving the government broad powers to try terrorism suspects before courts whose procedures and evidentiary rules vary dramatically from that of the typical Article III civilian criminal tribunals. And he is certainly right in so characterizing the MCA.

But I think it's slightly more nuanced than that. If one accepts, as I do, that the laws of war recognize a small class of cases where enemy belligerents during wartime may lawfully be tried by a military commission, then I don't think it meets a loose definition of a general "national security court" simply for Congress to provide more comprehensive statutory authority for such tribunals.

The hard part is the scope of the MCA commissions' personal and subject-matter jurisdiction. And given the breadth of the definition of "unlawful enemy combatant" in section3 of the Act, combined with the inclusion of a host of substantive offenses (e.g., conspiracy; material support) not recognized by the laws of war (and capable of sweeping within their scope a massive range of criminal, as opposed to belligerent, conduct), I think it is quite clear that the MCA creates military commissions with jurisdiction over both offenders and offenses that substantially exceeds that of traditional military commissions.

Of course, it's a separate question whether the MCA is unconstitutional in so providing. The bigger point here, methinks, is that the answer to that question has implications for the future of the idea of "national security courts." If there are constitutional limits on the circumstances under which Congress may depart from the Article III model for trying federal criminal offenses, presumably those limits would be implicated here. If, conversely, the jurisdiction of the MCA commissions is eventually upheld, then I think it is fair to say that the MCA could become an important precedent for future "national security court" proposals, especially where non-citizens are concerned.

One thing is certainly clear: The contention that was raised several times on Friday--i.e., that this debate is entirely academic and lacks practical significance because "no one" would ever dare create a national security court for criminal prosecutions--may not be entirely accurate. And the MCA, stealthily (is that even a word?), is the reason why.