The National Security Court We Already Have

Abstract

In the summer of 2007, two law professors made a splash by proposing the creation of a "national security court." Professors Jack Goldsmith and Neal Katyal, the former having served in the Bush Administration's Office of Legal Counsel, and the latter now serving in the Solicitor General's Office of the Obama Administration, proposed a "Congressionally sanctioned system of preventive detention." Article III judges would determine whether the government had a valid rationale for detention in each case brought before them. Congress would define who counts as an "enemy," and it would create rules for the handling of classified evidence and other procedural details. The system would be "comprehensive." Goldsmith and Katyal's proposal garnered considerable criticism from civil libertarians, who worried that the creation of a parallel justice system was unnecessary and potentially dangerous.