an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Criminal Trials for Terrorists Make Legal and Political Sense
The recent verdict in the Ghailani trial has reignited the long-running debate over whether terrorism suspects should be tried in federal court or military commissions. (See Eugene Fidell’s excellent summary of why coercive interrogations—and not any flaws in criminal justice system—are the root cause of any dissatisfaction with the Ghailani verdict). Ghailani however, has also prompted a defense of indefinite and prolonged detention without trial, thus far the fate of all except a handful of Guantánamo detainees.
In a Washington Post op-ed, Benjamin Wittes and Jack Goldsmith argue that Ghailani illustrates the risks of bringing terrorism suspects to trial—the main risk being that the government cannot guarantee the outcome. (Given that Ghailani still faces a mandatory minimum of 20 years in prison, despite the manifest problems with the government’s case, the verdict hardly provides a compelling example for their argument). Wittes and Goldsmith argue that the better option—at least for Guantánamo detainees—is to hold them without trial. For some, such as Khaled Sheikh Mohammed (KSM) and others accused of involvement in the 9/11 attacks, that surely means permanently.
Wittes and Goldsmith seek to claim the “middle” ground. But, as Stephen Vladeck suggests, their argument is anything but moderate.
I have written elsewhere about the legal flaws in the type of sweeping detention authority advocated by Wittes and Goldsmith and argued against it on behalf of various clients held as “enemy combatants,” including Ali al-Marri, whose case was mooted by the Obama administration to avoid a Supreme Court ruling precisely because the detention there was not “tradition-sanctioned, congressionally authorized, and court-blessed,” as Wittes-Goldsmith posit. While recent D.C. Circuit decisions in the Guantánamo habeas cases have largely sided with the government on its legal authority to detain under the 2001 Authorization for Use of Military Force, the most relevant Supreme Court case—Hamdi v. Rumsfeld—cautions against the type of detention Wittes-Goldsmith advocate.
Wittes and Goldsmith’s real pitch, however, is not legal but political. They package indefinite detention as the best option for an administration seemingly caught between the Scylla of right-wing fury against civilian trials and Charybdis of liberal and international opposition to military commissions.
But adopting the Wittes-Goldsmith approach would be short-sighted. Federal criminal trials can help repair some of the damage to U.S. credibility caused by torture and other post-9/11 practices. They also offer Obama a unique teaching moment. Criminal trials are not merely about a “defendant’s rights”; they also embody a collective yearning to see justice done. Paradoxically, the trial of alleged 9/11 mastermind KSM—viewed as the most politically sensitive—is in many ways the easiest choice since the government’s evidence for conviction there is so strong.
Principle should guide the administration’s decision on Guantánamo’s future. But the administration might consider the political gain in saying that it put those responsible for the worst terrorist attacks in the country’s history on trial in a process that secure from challenges to its legitimacy and convicted them. Surely that is not “more trouble than it’s worth.” Posted
by Jonathan Hafetz [link]