Why Holder is wrong on Zazi

Moreover, giving hardened terrorists a podium with the visibility and credibility of a courtroom located in, for example, downtown Manhattan, from which they can trumpet their radical views is a terrible idea. At a time when America is desperately trying to win the hearts and minds of the world’s 1.57 billion Muslims, a community from which I come (and the vast majority of whom reject al-Qaida and its radical philosophy), we in the American public can little benefit from giving voice to the most extreme and militant elements of that community. And finally, the problem of how to deal with convicted terrorists once their sentence has been served is a difficult one at best. One wonders what will happen when the remaining 15 years on the sentence of Jose Padilla—the convicted terrorist supporter and alleged “dirty bomb” plotter—have passed.

At the end of the day, however, this doesn’t mean—as some have recently suggested—that we must use military tribunals to try these suspects. Those who argue that there are important benefits to trying certain individuals in a system that isn’t perceived—rightly or wrongly—as being stacked against defendants have a point. Thankfully, however, there is a middle ground, one that is consistent with protecting the American public, upholding our values, and being seen to do the right thing. Now is the time for Congress to seriously consider creating a National Security Court, modeled upon the Foreign Intelligence Surveillance Court, staffed by Senate-confirmed, life-tenured federal judges, with special rules for handling classified material and evidence that is collected in abroad or on the battlefield, appropriate limitations on the manner in which proceedings are conducted, and procedures for dealing with convicted individuals once their sentence has been served. Such a court would have the key hallmarks of the federal system—experienced, independent judges with life tenure who have trial experience in the run-of-the-mill criminal and civil cases; appropriate access to information by defendants and the public; and a system of appellate review—with equally experience appellate judges, also with life tenure—that is separate and distinct from the Executive Branch. Such a court would, at the same time, protect the ability of the government to present its case without sacrificing critical intelligence sources and methods and ensure that convicted terrorists aren’t released into American cities.

Only such a court would be able to handle the hard cases—the ones Mr. Holder doesn’t really address—without causing us serious problems at home. For that reason alone, Congress ought to stop sitting around and actually do something before the Obama Administration gets too far down the road of converting the War on Terror into a law enforcement-based police action.

Jamil N. Jaffer served in the Bush Administration as Associate Counsel to the President and as Counsel to the Assistant Attorney General in the National Security Division of the Department of Justice. Mr. Jaffer is also a member of Keep America Safe.