Nearly six years after 9/11, the government's system for detaining terrorists without charge or trial has harmed the reputation of the US, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed sceptically by our own courts.
The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for 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. It would operate with a Congressionally approved definition of the enemy. It would reduce the burden on ordinary civilian courts. It would handle classified evidence in a sensible way. It would permit the judges to specialise and to assess over time the trustworthiness of the government and defence lawyers who appear regularly before them. Such a court, explicitly sanctioned by Congress, would have greater legitimacy than our current patchwork system, both in the US and abroad.
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.
The court would have a permanent staff of elite defence lawyers with special security clearances as part of its permanent staff. Defence lawyers trained in the nuances of taking apart interrogation statements, particularly translated statements, are crucial because often the legal proceedings will involve little else in the way of evidence. Earlier, 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. Today we must create sensible institutions for the long haul.
(Jack L. Goldsmith, a Harvard law professor, was an assistant attorney general from 2003 to 2004. Neal Katyal, a Georgetown law professor, represented the plaintiff in the 2006 Supreme Court case that struck down the Guantnamo tribunals.)
