Judge Richard Posner has made a rather startling insight in his podcast with Glenn Reynolds. It is a very simple idea to understand, and that is that given a choice between countering terror and protecting civil liberties, most courts in the US will protect civil liberties. That is because most judges in the US don't know much about countering terror, and judges tend to talk what they know. He suggests that what we need is a Counterterrorism Court. Something akin to what the French have is what I interpret, but I may be wrong. I'm not particulary fond of the nomenclature of an Inquisitorial Court, but then neither am I particularly sanguine about the prospects for a purely executive solution to terror.
I have argued that I expect that the more terrorist trials we hold in this country the better we will get at it. If the GWOT is to be refocused as an international police action we are going to have to do a better job of investigating. Posner opines that the FISA Court is really too narrowly focused on SIGINT to be broadly effective. I agree.
It is also becoming clearer to me that between what we have at Gitmo, old treaties, the Hamdan decision, it's a patchwork. I think there is a strong case for a new type of circuit court with new powers of investigation to handle the kinds of cases we are likely to encounter with Jihadists and non-state actors going forward. I think those who have, even under the influence of BDS, suggested that there is too much Executive power arrogated by GWBush are backing into the truth. I say that the Congress clearly isn't doing a decent enough job, and that anybody with gripes about Gitmo should be behind a new sort of judiciary power.
Everything is not war. War powers are not properly defined by precedent. GWB's lattitude given the mistakes of Iraq have wasted life and resources. Posner is onto something.
So what kind of confidence can we have that a special court will focus on terror suspects and not be especially corrosive of civil liberty? Is Posner someone we could trust in this regard? If not, then who? Are having new powers assigned to the judiciary a road to hell? Is the French model worthy of emulation? Or will we just shoot Osama in the head and be done with it - ie a take no prisoners attitude towards Jihadism.
I am particularly fond of Bush's phrasing of bringing the enemy to justice. The same old justice won't do.