THE BLOG
01/15/2009 05:12 am ET Updated May 25, 2011

Don't "Split the Baby" with National Security Courts

Most proponents of creating national security courts to handle terrorism prosecutions frame their proposals as politically moderate solutions that close the gap between our traditional criminal justice system and the military justice system. We need a third way, they argue, because neither system can handle the challenges posed by our counterterrorism efforts. The facts, however, demonstrate that our existing legal systems work well. Moreover, rather than being a moderate middle ground, special hybrid tribunals to prosecute terrorism-related charges are an extreme solution that undermines our nation's bedrock constitutional principles.

In the oft-cited biblical story of King Solomon, two women told the wise king that each had recently given birth, but one of the babies died in the middle of the night. Each claimed the surviving child as her own. Resolving the claims, King Solomon declared he would cut the remaining baby with his sword and give each woman half. The child's real mother desisted, showing her love for the child by begging the King not to cut the baby, but instead to give him to the other woman. King Solomon, of course, did not kill the child, but instead gave him to his real mother whose pleas for mercy had unmasked the imposter. Thus, although the expression "splitting the baby" has come to stand for compromise, we must remember that dividing the baby in two was not, in fact, King Solomon's solution. Splitting the baby, just like splitting the Constitution, is a radical proposal that reveals that there is only one choice.

Here too, the alleged compromise of national security courts needs to be unmasked as ultimately destructive. For over 200 years, our traditional criminal justice system has administered justice while safeguarding our constitutional rights. It has effectively overseen the prosecution of over 100 international terrorism cases in recent years, allowing the courts to play their proper role in judging disputes and weighing evidence. Proponents of national security courts claim that these new hybrid courts would eliminate burdensome procedural rules that protect the rights of defendants and impede securing convictions. But the flaw in this argument is that the Constitution applies regardless of the kind of proceeding and that these protections will apply whether the court is a hybrid or a traditional criminal court.

Compromise is an important skill and a critical tool in our democratic system. Although we must compromise within our constitutional framework, we cannot compromise our Constitution. As King Solomon and the mother who loved her child recognized, splitting the baby will kill it.