Recently the New York Times published an Op-Ed by Jack L. Goldsmith and Neal Kaytal, two professors, calling for a special national security court to try alleged terrorists, a system which would legalize preventive detention in the United States. There was outrage by many civil libertarians and particularly by those of us who represent Guantanamo detainees. I think the establishment of such a system in the U.S. puts us well along the road to a police state. My published letter to the New York Times is set forth below.

New York Times July 16, 2007

A New Court for Terror Suspects?

To the Editor:

Jack L. Goldsmith and Neal Katyal call for creation of a preventive detention system. We already have that system at Guantánamo. The idea of making this system permanent and more acceptable by adding some bells and whistles — a special national security court — is going in the wrong direction. It is contrary to American values and will ensure the continued negative consequences of the current policy that the authors refer to in the article: harm to our reputation, disrupted alliances and the “war of ideas with the Islamic world.”

Preventive detention cuts the heart out of any concept of human liberty; it permits the state to imprison people who have not committed any crime and to do so outside of the rules of a criminal law system that has been with us for more than 200 years.

No domestic or international law permits preventive detention under the current circumstances. The International Covenant on Civil and Political Rights, a treaty binding on the United States, permits it only in the most drastic of circumstances when the actual continued existence of the nation is threatened. Even then, a situation we are not facing, the detentions must be of an exceptional and temporary nature — not potentially forever. The treaty expressly prohibits indefinite detention without charges and trial.

The right direction is to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.

Michael Ratner
President
Center for Constitutional Rights
New York, July 11, 2007