As Harvard Law School Professor Jack Goldsmith and others recently warned, the federal government’s reaction to President Barack Obama’s order to close the Guantanamo Bay terrorist detention facility must be measured and deliberate. We simply cannot permit the relative failures of the Military Commission’s process to be exchanged for another failure by having all of the international terrorists tried in our civilian federal courts. Importantly, the consequences of deficiencies within our existing Article III federal court system could be catastrophic.

Many who once supported using the civilian court system for all of the detainees are now beginning to realize the shortcomings in trying to convict alleged Al Qaeda fighters within our hallowed halls of justice. The reality is that our civilian courts were never intended for these sorts of trials of "war criminals."

Although military commissions - which are ideal and have been used throughout our history - are still necessary for trying illegal belligerents in conventional wars, they are not suited for trying Al Qaeda fighters. On the other hand, civilian courts also are not the right "fit" for the detention and trials of these fourth generation war fighters.

Examples of why the civilian courts are not the right venue for trying detained Al Qaeda combatants are numerous.

The following are just a few examples of the complications that arise from using the existing, civilian federal court system:

• Evidentiary Issues: Applying the federal rules of evidence, as well as 4th and 5th amendment principles, to detainees captured or detained in Afghanistan - or anywhere elsewhere on the "battlefield" in the War on Al Qaeda - will prove unmanageable for most of the cases and therefore many cases will either not be prosecuted at all, or the detainees will be acquitted;
• Soldiers are not police: If we use the law enforcement construct, warriors will be thinking twice before questioning the Al Qaeda fighters as a result of subsequent prosecutions; Miranda warnings, warrants to search Al Qaeda safe houses, etc., will become the norm. This is disastrous for military policy and operations;
• Disregard of the bi-partisan 9/11 Commission Report: To simply return to trying to adjudicate Al Qaeda-type fighters within the existing civilian, federal court system is a return to the very "law enforcement" mentality that the 9/11 Commissions warned against returning to in our confrontation with international terrorism. This is an armed conflict, and to disregard analysis of recent history and the realities of this "fourth generation warfare," is naive;
• Judges: This unique area of the law - national security law (intelligence, law of armed conflict, international, maritime, etc.) - requires experts in this area to sit over these trials and habeas proceedings. Because the stakes are so much higher than simple law enforcement actions, experts should be overseeing these trials. Just like bankruptcy and immigration, the existing civilian courts should not be charged with this enormous burden;
• Juries: Unbiased juries would be virtually impossible to empanel. For example, it goes without saying that a "trial" in the conventional sense for Khalid Sheikh Mohammed would be nearly impossible. What American has not seen pictures of his capture and/or knows of his leadership in organizing the attacks of 9/11?
• Detainees would have more rights than POW's: As Chief Justice Roberts noted in his dissent in the Lakhdar Boumediene case last summer, if we permit detainees captured during the War on Al Qaeda to use our existing Article III federal criminal court system, Washington will in effect establish a doctrine underwhich more rights will be granted to those who violate the laws of war than traditional combatants who do comply with the laws of war. Yes, if granted access to US federal courts or trials, the detainees would have greater rights and protections than would prisoners of war in conventional armed conflict. This absurdity should be strongly resisted by all policymakers.
• Bleed Over: Perhaps of greatest concern to me is the potential bleed over from having these trials conducted within the existing justice system. Regardless of what has been said, some relaxation of traditional constitutional protections will have to be employed. But in doing so within our Article III courts, we run the risk of these relaxations also being argued for in other cases of "national emergencies" in the future, such as the War on Drugs, etc. We should resist compromising our great system of justice by forcing these cases into a court system that was clearly never intended to be used for these purposes.

These are just several of the reasons for the political branches of government to resist using the existing civilian court system to implement the closure of Guantanamo Bay. The Military Commissions have never fully achieved their intended purpose, but the pure law enforcement approach will inevitably fail as well. Policy makers in Washington must resist the temptation to permit the pendulum from swinging back too far.

Glenn Sulmasy is on the law faculty of the US Coast Guard Academy where he specializes in national security law. His new book, “The National Security Court System: A Natural Evolution of Justice in an Age of Terror,” will be published in July by Oxford University Press.

The views expressed herein are his own.

Sulmasy was interviewed at length by HSToday.us for the July 2007 report, "Toward A 'Homeland Security Court' for Captured Terrorists."