When a terrorism-related court case comes down, the Lawfare blog is an absolute must-read for informed and thought-provoking commentary. Benjamin Wittes and Robert Chesney argue that “it really is not clear that prosecutors would have fared better in a military commission,” and engage with a response from Debra Burlingame of Keep America Safe. Jack Goldsmith chimes in:
But while the Ghailani verdict does not argue for commissions, it does, I think, highlight the attraction of military detention without trial. Imagine, as now seems quite possible, that Ghailani had been acquitted. The administration would have faced the terrible choice between releasing him or (as both the Attorney General and Judge Kaplan have said is possible) continuing to hold him in military detention indefinitely. The first option is unsafe for the nation and suicidal politically. The second option looks terrible in light of acquittal, and would harm the legitimacy of every subsequent terrorist trial. The reason the first option is unsafe and the second option is available is that Ghailani helped conduct a major terrorist operation on behalf of a group with which we are at war. Military detention was designed precisely to prevent such soldiers from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation. And this morning it looks more appealing than ever.
Wittes and Goldsmith have an op-ed in tomorrow’s Washington Post synthesizing those posts. Military detention without trial is a bit problematic given that the war on terror has no obvious endpoint, which is why they clarify that they’re only suggesting it for the relatively few cases where releasing a combatant would simply be too dangerous to allow:
This is not, we want to emphasize, an argument that either civilian trials or military commissions are illegitimate venues for terrorist trials or that they should never be used. Rather, it is a pragmatic argument in favor of a lawful alternative whose use, given the difficult events of the past nine years, now makes more sense than trial in any forum for a dwindling group of Guantanamo detainees whose prosecutions are more trouble and risk than they’re worth.
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