Nearly six years after 9/11, the government’s system for detaining terrorists without charge or trial has harmed the reputation of the United States. A bipartisan solution that reflects American values is possible. A sensible first step is for the US Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.

Such a court would have a number of practical advantages over the current system. Criminal prosecutions should still take place where they can. But they are not always feasible. Some alleged terrorists have not committed overt crimes and can be tried only on a conspiracy theory that comes close to criminalising group membership. In addition, the evidence against a particular detainee may be too difficult to present in open civilian court without compromising intelligence sources and methods. And the standards of proof for evidence collected in Afghanistan might not meet every jot and tittle of American criminal law.

A Congressionally sanctioned system of preventive detention, which would supplement the criminal process, is far from unprecedented. The US Supreme Court has recognised that the president can detain traditional enemy combatants during wartime. The court has also long approved preventive detention for people who are dangerous to society but who have not committed crimes.

The US Congress should require the national security court to make sure that there is a continuing rationale to detain people years after their initial cases were heard. It should also insist on rights of appeal for detainees, ensuring scrupulous review by a second layer of specialised, repeat judges who will keep the initial judges on their toes. And consistent with the values enshrined in the US Constitution’s equal protection clause, Congress should insist that the same rules apply to citizen and non-citizen terrorist detainees.

Detainees, however, need not be given the full panoply of criminal protections. A detainee may not be able to meet his lawyer right away, particularly if interrogation has just begun. A national security court, while it would operate in public, would not have the same public and press access as an ordinary criminal trial.

In the past, Americans might have hoped that a national security threat would abate over time, and so the pressures on the civilian courts, whatever they were, would subside. The Americans must create sensible institutions for the long haul.
NYT