A New Framework for National Security

Andrew McCarthy
Andrew McCarthy
Co-Chair of the Center for Law and Counter Terrorism and former Federal Prosecutor Andrew McCarthy presented a lecture on a “New Framework for National Security” on Jan. 26 in the Fillius Events Barn. McCarthy gave the first talk of the semester in the Levitt Center Speaker Series.

McCarthy led the prosecution against the jihad organization of Sheik Omar Abdel Rahman, in which a dozen Islamic militants were convicted of conducting a war of urban terrorism against the United States that included the 1993 World Trade Center bombing and a plot to bomb New York City landmarks. He has taught as a professor at Fordham Law School and New York Law School. He has also authored the book, Willful Blindness: Memoir of the Jihad, in which he discusses the unique challenges of fighting the war on terror.

McCarthy began his lecture with a simple question, asking “Are we protecting our National Security in a viable way?” He argues that as of September 11, 2001, the United States has found itself locked in a debate over two paradigms: civil justice versus military justice. McCarthy argues that the U.S. has held some four to five million prisoners of war, and until 2004, the American populace has never sought to use the civil justice system as a substitute for military commissions as a means of trying prisoners of war. McCarthy says this conflict helps defendants, in this case individuals charged with terrorism, and simultaneously forces the U.S. to operate with a hand tied behind its back.

In a civil court, the defendant has the right to ask for any information that may be admissible as evidence for the case. The court does not, however, make a distinction between intelligence that the government has dubbed classified for national security purposes and public knowledge. McCarthy draws upon his own 1995 case against Al Qaeda operative Ali Mohammed as an example. The defendant requested a list of some 200 individuals the U.S. had deemed a threat to national security. Osama Bin Laden appeared on that list. Within two days of Mohammed’s acquisition of the document, it found its way into Bin Laden’s hands. Suddenly Al Qaeda’s leader found himself in possession of a list of individuals the U.S. government had on its radar. As McCarthy put it, those names quickly became dead assets as a means of gathering intelligence for the government.

The public is constantly being told that this is a new kind of war, that combat has evolved. McCarthy holds this to be true, though he also says the rules set out by the Geneva Convention have not. Combatants need to conduct themselves in a certain manner to be considered prisoners of war under the Geneva Convention. McCarthy argues that terrorism does not fall under this code of conduct, and thus combatants captured do not have the privilege of being protected by protocol. “Rogues will be rogues,” says McCarthy. “Why should we civilize war and tie one hand behind our backs?” The enemy certainly is not. The rule of war and rule of law are not perfect substitutes; combatants cannot be properly tried in a civil court, asserts McCarthy. “It makes no sense to send to most political issues (terror cases) to the least accountable political actors (federal judges).”

In light of the uniqueness of our current conflict, McCarthy proposes a hybrid court, which would more closely follow the proceedings of a military commission but would be presided over by an Article III Federal judge. “Individuals found guilty in a civil court have been slammed by federal judges,” says McCarthy. Though he wishes to see a system that our allies would cooperate with, McCarthy asserts that in order to be effective, the “National Security” court, as he calls it, would not follow due process, meaning that the prosecutor would not have to bear the full burden of proof as in a civil court. This would protect valuable classified information from being admitted into cases such as McCarthy’s in 1995.

McCarthy concluded his talk by stating that the road ahead requires much bravery and courage on both the part of our leaders and us as voters providing the ultimate oversight in these matters.

Student author Richard Maass '12 is a graduate of Proctor (Vt.) Junior-Senior High School.

This story appeared in the February issue of eNews.
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