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Creation of a National Security Court

By: Sarah Watkins

Following the recent terror attack in New York, President Donald Trump expressed his desire to send the suspected perpetrator of the attack, Sayfullo Saipov, to Guantanamo Bay, Cuba. While his press secretary later told reporters that President Trump was merely signaling his support for the action, not advocating it, and New York had already charged Saipov with numerous offenses, the comment rekindled a bitter debate about the civilian criminal justice system’s ability to handle terrorism prosecutions.

Trying terrorism cases in civilian court raise potential issues including the inability to use coerced or secret evidence, rights of the accused like a speedy trial, the necessity of a Miranda reading, and discovery requirements, and the security of the judge and jury.1 On one side, advocates of tactics often used during the Bush administration argue the country is best served by trying terror suspects, especially those determined to be enemy combatants, in military courts.   Senators John McCain and Lindsey Graham are both advocates of that position, recently commenting that Saipov should be labeled an enemy combatant. On the other side, many legal scholars believe civilian courts are better equipped to try terrorism related litigation, citing successful cases including Richard Reid (the “Shoe Bomber”), Ramzi Yousef (the 1993 World Trade Center bombing), and Faisal Shahzad (the Times Square bomber).

A third position has emerged in recent years, calling for the creation of a new court to handle terrorism related cases. Michael B. Mukasey, the former Federal District Court Judge who signed the material witness warrant authorizing the arrest of terror suspect Jose Padilla in 2002, cited the Padilla’s lengthy journey through legal system as evidence that current institutions and statutes are not able to effectively deal with terrorism cases. Mukasey joined with other legal commentators calling for the creation of new Article III court, a “National Security Court,” to address the potential issues arising from prosecuting a terrorist suspect in the current civilian court system. This court would be likened to the Foreign Intelligence Surveillance Court, and would have jurisdiction over cases involving international terrorism and review of enemy combatant detentions. This court would, among other things, limit exposure of national security secrets, speed up the trial process, and importantly lower the standard of proof required to convict.2

While the National Security Court may be able to eliminate some of the challenges that arise during the prosecution of terrorist cases, lowering or eliminating constitutional protection in one area of law creates a potential issue for seepage into other arenas.  While most view terrorism as a particularly heinous crime, the concept that every suspect, regardless of how reprehensible the crime is that they are accused of committing, is tried under the same procedures with the same protections has been the cornerstone of our judiciary since its inception and careful consideration should be given by legislators before these standards are lowered.


1 Dʏᴄᴜꜱ, et. al, Nᴀᴛɪᴏɴᴀʟ Sᴇᴄᴜʀɪᴛʏ Lᴀᴡ 1156 (6th ed. 2016).

2 Id. at 1157.


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