Judiciary’s Role in Counterterrorism Must be Defined

As the American Spring of 2013 unfolds, there are plenty of local, state, national and international political and legal issues to occupy the interest of those of us who enjoy or are even addicted to reading and writing about them. At the local level we highlight county and city officials leaving office in disgrace after convictions resulting from appropriating public funds and human resources for corrupt illegal, illicit and even prurient purposes. At the state level, we observe our “Free State” finally abolishing the death penalty, dramatically expanding gambling laying the foundation for a travelable (at faster that a snails’ pace) transportation system in the future, wind energy farms and a number one ranked educational system for all who are capable of contributing economically and culturally to our state. Finally, nationally and internationally we witness a newly elected and thereby emboldened President Obama and a Republican Party reflecting on the causes of its defeat and at times openly, warring with itself (“wacko birds” vs. Old Guard) over national security and world-view issues.

This is brought about by a rapidly changing world caused by fast paced globalization uncovering heretofore latent or repressed demands for freedom and communication particularly by young people. These forces have been unleashed by the Internet and its stepchildren, the Social Media.

These phenomenon are confronted with hostility, born of the moral outrage of religious fundamentalism, most Islamic, in the Middle East, Northern Africa and parts of Southern Europe and Southeast Asia. This Islamic Fundamentalism frequently morphs into terrorist activity housed in cells, rebel armies, and militias which know no national boundaries or allegiances.

In this context, we recently heard U.S. Senator Rand Paul (R. Ky.) filibustering for 13 hours the confirmation of President Obama’s nomination of National Security Advisor John Brennan to be the Director of the CIA. The pretext (Notice I said “Pretext” not “Context”) for the filibuster was the President’s “Drone Policy”. This policy issue was initially confused and complicated more than it needed to be by Attorney General Eric Holder’s unnecessarily incomplete and incoherent answer to the seemingly very simple and purely hypothetical question posed by Senator Paul, to wit:

“Does the President of the United States by himself have the authority

to order the assassination of an American citizen on American soil

if he is not at that moment an imminent threat to the national

security of the U.S.?”

Belatedly, after a series of unclear and arguably evasive answers, Attorney General Holder finally answered “No” to that question. Before that and probably to be fair even if the Attorney General had answered clearly right away, we witnessed a dialogue which included advocacy of yet another “Court”, this one to provide a check and balance on the President’s power to order Drone Strikes, in a manner similar to the work of a Foreign Intelligence Surveillance Act (FISA) Court when it reviews and authorizes electronic surveillance activities on our citizens.

Before the President proposes anything like that, he should implement the restructuring of the intelligence community which although mandated by the Intelligence Reform and Terrorism Act of 2004 has never effectively taken place. Furthermore, in doing so, the role of the Federal Judiciary if it has a role and responsibility for the supervision of our effort to combat terrorism should be critically examined and clarified. To date, whether the Federal Judiciary has a role in supervising the combating of terrorism whether it be on earth of in cyberspace has never been clearly established or even systematically examined for the purpose of determining whether that court is an institution structured to play such a role and whether it is operationally capable of doing so.

The result is that twelve years after the 9-11 attacks and other breaches of national security, the last notorious one being in Bengazi, Libya, late last year, the institutional structure of U.S Counterterrorism appears to be at best incoherent and at worst incomprehensible. That should change and in implementing that change, President Obama should consider the ideas of his former colleague on the faculty of the University of Chicago Law School, Judge Richard Posner.

“Posner’s book published in 2006, titled “Uncertain Shield: The U.S. Intelligence System in the Throes of Reform,” and also his book “How Judges Think” provide potentially important ideas for whomever is selected by Obama to conceptualize the restructuring of the U.S. Intelligence system and also the extent of the supervision of that system by the federal judiciary.

Judge Posner describes attempts to articulate the role and responsibility of the Judiciary in combating terrorism, to date, including his own, as “incoherent” at best. The evidence to support that conclusion is abundant and convincing. The Judiciary currently has no court or official with overall judicial or even administrative responsibility for the review of counterterrorism. In fact, other than the judges assigned to the two Foreign Intelligence Surveillance Courts, federal judges do not even have security clearances. Most important as Judge Posner points out “federal judges have NO education , training or experience in national security matters “to inform or reference their decisions. Clearly, at a time when courts are belatedly recognizing the value of specialized knowledge of the subject matter of their jurisdiction, to refer life and death issues perhaps on a massive scale to judges with no experience and no expertise in national security is ill-advised and in fact dangerous and fool-hardy.

The fact that the decisions of untrained federal district court judges would be subject to review by appellate and Supreme Court judges, also not chosen for their knowledge or training in national security, should provide little or no comfort. How the restructuring of our counterterrorism effort should proceed and what national or even international role the Federal Judiciary should have in its supervision are issues which will be critical for our country and the world.

The threshold issue to be decided now is: What is reasonable in the light of the 21st century terrorist threat?

The answer to that question depends on understanding the nature of the terrorist threat and the behavior of terrorists around the globe. That threat and the behavior of those who present it have never been studied and analyzed with a view to determining what means of monitoring and addressing it are reasonable and can be explained if the goal is to prevent the attack.

We should put our best people on that a soon as possible! That would include constitutional scholars, writers, historians, as well as intelligence professionals, technologists and retired Court of Special Appeals Judge Charles Moylan who could sum it all up in 100-pages or less with historical insight and footnotes-references.

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