[Congressional Record Volume 152, Number 90 (Wednesday, July 12, 2006)]
[Extensions of Remarks]
[Pages E1391-E1392]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 A NEW KIND OF LAW IN A NEW KIND OF WAR

                                 ______
                                 

                            HON. ROB SIMMONS

                             of connecticut

                    in the house of representatives

                        Wednesday, July 12, 2006

  Mr. SIMMONS. Mr. Speaker, I rise to submit for the Record a column 
that appeared in The New London Day on July 9. It was written by Glenn 
Sulmasy, an associate professor of law at the U.S. Coast Guard Academy 
and a noted expert on national security law. The title of the op-ed 
piece is ``A New Kind of Law in a New Kind of War.''
  America is not at war with a traditional enemy, but a network of 
civilians who swear allegiance to radical Islam. Consequently, the 
various laws that have historically governed international conflicts do 
not seem to fit well with our current situation. Nevertheless, we have 
spent a lot of time discussing the present and future conditions of the 
combatants in our custody. In his column, Glenn Sulmasy offers a series 
of recommendations providing a framework for this important debate. He 
makes an especially compelling case for a National Security Court 
system.
  America's critics do little more than attack the current system. 
While such criticism is important, it is not always constructive. We 
need to think of new ways to handle the detention and adjudication of 
enemy combatants.
  In the book In Time of War, which details President Roosevelt's 
treatment of eight Nazi saboteurs in 1942, Pierce O'Donnell argues that 
our enemies ``would forcibly impose their nihilistic, totalitarian 
ideology on society through violence and intimidation. That is 
precisely why this just struggle--characterized as a war on terror--
should not be tainted by compromising our historic respect for justice, 
constitutional liberties and international law.''
  As we take steps to defend America from a terrorist threat, we cannot 
lose sight of the values we are defending. For this reason, I urge my 
colleagues to take a few minutes and read Glenn Sulmasy's column, which 
outlines a new kind of law for a new kind of war.

                [From the New London Day, July 9, 2006]

          Guantanamo Bay: New Kind of Law for New Kind of War

                           (By Glenn Sulmasy)

       Last week, in Rumsfeld vs. Hamdan, the Supreme Court 
     decided that the military commissions for the jihadist 
     detainees in Guantanamo Bay are not lawfully constructed. I 
     disagree. However the realities of maintaining international 
     support and ensuring domestic consensus on fighting the 
     global war demands we look for alternatives for detaining and 
     trying jihadists. Regardless of how the Court decided in 
     Hamdan, the commissions have failed.
       The Court has forced the opponents of military commissions 
     to offer legitimate solutions. The best solution available is 
     the creation of a National Security Court system.
       The global war on terror has created ambiguities in both 
     the laws of armed conflict and how best to fight this new 
     war. The asymmetric threat of international terror, the lack 
     of a clear national enemy, the problems with the military 
     commissions in Guantanamo Bay, allegations of torture and the 
     recent constitutional issues surrounding wiretap efforts of 
     the National Security Agency all highlight the lack of an 
     appropriate body of law to govern this new conflict. Nowhere 
     is this ambiguity more evident than in the United States' 
     handling of detainees.
       The ``enemies'' in this war are men and women who fight not 
     for a nation but for ideology, do not wear standard military 
     uniforms and, as doctrine, flout the laws of war. These new 
     ``warriors'' have created extreme difficulties since they are 
     not conventional prisoners of war (regardless what the recent 
     ruling has asserted) and thus (with all due respect to 
     Justice John Paul Stevens) the Geneva Conventions simply do 
     not apply to them. Adjudicating their status and crimes has 
     become increasingly chaotic. It initially appeared that the 
     military tribunals (currently referred to as military 
     commissions by the Bush Administration) would provide the 
     appropriate venue for handling the prosecution of the 
     detainees. But now, over four years later, there has not been 
     a completed prosecution. More than 500 detainees remain in 
     Guantanamo Bay and supposedly another 450 are being held in 
     Afghanistan.
       As this problem grows, the U.S. needs a new approach. Our 
     own federal courts system, the standard courts-martial system 
     and other traditional methods, won't work. A healthy, 
     bipartisan debate on ``what'' to do next is critical. This is 
     a new war, one that mixes law enforcement and warfare, and 
     does not fit neatly in either category.

[[Page E1392]]

       A national security court apparatus needs to be legislated. 
     As Congress begins to debate (as ordered by the Supreme 
     Court) how to handle jihadists' violations of the laws of 
     war, policymakers must achieve both the reality and 
     appearance of justice.
       Clearly, many issues need to be hammered out regarding the 
     composition of the court.
       The court would be a hybrid of the military commissions and 
     our own federal trial system.
       The jihadist would be afforded limited rights, including 
     right to counsel and be detained and tried on military bases 
     within the United States. The law would allow the death 
     penalty. The hearings would be closed with the exception of 
     observers from Human Rights Organizations (for example, 
     Amnesty International, the International Red Cross and the 
     U.N. Human Rights Watch.) The U.S. Department of Justice 
     would provide prosecutors and administer over the program.
       International concern over Guantanamo is detracting from 
     our ability to provide guidance, counsel and policy in this 
     and other arenas. A blue-ribbon commission, created by the 
     president with bipartisan support from Congress, should 
     immediately be formed to address questions as to proper 
     detention, adjudication, intelligence gathering, terrorist 
     surveillance and other legal issues associated with the 
     threat of international terror.
       The National Security Court, a natural outgrowth of the 
     military commissions, affords an opportunity for U.S. policy 
     makers to respond forcefully and effectively to calls for a 
     way out of the Guantanamo issue.
       The Hamdan decision has pushed us in this direction. The 
     military commissions are no longer a viable option.
       Rather than offering no solutions and merely attacking the 
     existing structure, policy makers need to emerge with fresh 
     ways to look at the proper detention and adjudication of the 
     jihadists.
       It is time to regain the initiative, and reaffirm our 
     leadership in the humane prosecution of those who would 
     undermine the ideals of democracy.

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