DEBORAH AMOS, host:
National security will also be an issue in the Senate confirmation hearings for the president's nominee for attorney general.
Judge Michael Mukasey is likely to be questioned about his writings, including a Wall Street Journal opinion piece with this provocative heading, "Terror Trials Hurt the Nation, Even When They Lead to Convictions."
In that column, Mukasey said the country could benefit from a National Security Court — a separate judicial system designed to try accused terrorists.
NPR's Ari Shapiro reports.
ARI SHAPIRO: When Washington attorney David Laufman was a federal prosecutor in Virginia, he handled a major terrorism trial for an American named Ahmed Omar Abu Ali. This case was packed with post-9/11 legal goodies: There was sensitive classified evidence; the defendant claimed that the government illegally wiretapped him, and, of course…
Mr. DAVID LAUFMAN (Washington Attorney): He claimed that detailed written confessions he had given were the result of torture by Saudi security officers.
SHAPIRO: The federal court in Alexandria sorted through those issues one by one. And at the end of a trial, the jury convicted Abu Ali on all nine counts and sentenced him to 30 years in prison.
That experience led Laufman to this conclusion…
Mr. LAUFMAN: With certain exceptions, the federal courts have shown themselves to be well equipped to serve as forums for resolving terrorism cases.
SHAPIRO: Ah, but those exceptions. Like many lawyers with expertise in national security, Laufman thinks it might also be useful to have a separate court for the thorniest cases.
Mr. LAUFMAN: For example, the cases involving September 11th mastermind, Khalid Sheik Mohammed, and certain other high-valued detainees held at Guantanamo, are probably too heavily dependent on sensitive intelligence or too fraught with other issues such as hearsay or coerced statements to try in a conventional court.
SHAPIRO: Right now, those detainees are just sitting behind bars indefinitely, without any sort of independent court review. People disagree about whether it will ever be possible to try them at criminal courts.
George Terwilliger says he first raised this concern with the administration five years ago when he was deputy attorney general.
Mr. GEORGE TERWILLIGER (Former Deputy Attorney General): We're in for a long-term fight here so we better start looking for long-term mechanisms by which to defend ourselves.
SHAPIRO: Terwilliger would like to see a national security court that could authorize preventive detention so a judge could lock someone up to stop them from committing a terrorist act, even if prosecutors can't show that they've already committed a crime.
Britain has a system like that, but the U.S. does not.
Mr. TERWILLIGER: The government will find a way to identify people who are dangerous and need to be incapacitated to neutralize the threat that they represent, because the people will demand that.
SHAPIRO: Terwilliger says the question is whether the government will incapacitate people by bending the rules of the system we have now, or by working within the rules of a new system that everybody signs on to.
To groups like the American Civil Liberties Union, these proposals open the door to policies that are anathema to the American justice system.
Steven Shapiro is the ACLU's national legal director.
Mr. STEVEN SHAPIRO (National Legal Director, American Civil Liberties Union): Are we going to try people on the basis of secret evidence? Are we going to deny defendants the right to confront their accusers? Are we going to allow the government to rely on torture or coerced testimony? And if we do those things, how are we going to convince the world that these are fair trials?
SHAPIRO: Nobody agrees on the answers to those questions. Everyone has different ideas about what national security courts ought to look like. But the people who support national security courts are not confined to conservative legal circles.
Georgetown law professor Neil Katyal represented Guantanamo detainee Salim Hamdan in one of the biggest Supreme Court cases in recent history. He would like the country to test-drive a national security court.
Professor NEIL KATYAL (Law, Georgetown University Law School): If it works effectively and it's something the nation can be proud be of, then we can think about re-extending that initial authorization.
SHAPIRO: Katyal co-authored a New York Times op-ed that called for a national security court overseen by federal judges with life tenure, with a permanent defense bar of lawyers with the highest security clearances. He says the same rules would have to apply to citizen and non-citizen defendants.
Prof. KATYAL: I think to pretend that we will be able to live in a regime where everyone gets a criminal prosecution in every single case is not going to happen. So I would like to see a program for extremely small handful of cases that starts to think about an alternative to the existing system.
SHAPIRO: The attorney general nominee appears to agree with Katyal. Judge Michael Mukasey wrote an opinion piece encouraging Congress to start thinking about, quote, "how to fix a strained and mismatched legal system before another cataclysm calls forth from the people, demands for hastier and harsher results."
Ari Shapiro, NPR News, Washington.