Benjamin Wittes of Brookings and Jack Goldsmith, a former assistant attorney general in the Bush administration (of which he was a sometimes critic), make a compelling case: forget civilian trials and military tribunals for enemy combatants. Their logic is sound:
Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge’s sense of the “interests of justice.” The government would be foolish to rely on military judges’ willingness to admit evidence obtained – even in a derivative fashion — as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.
There is, however, reason to think that a commission trial would have presented problems not present in Ghailani’s civilian trial. One central problem is that the conspiracy charge on which Ghailani was nabbed might not be valid in military commissions; three sitting Supreme Court justices have said as much, and many scholars agree. On this and other issues from evidentiary and procedural rules to fundamental constitutional questions, military commissions raise legal uncertainties that have yet to be sorted out by appellate courts.
Instead, just hold the terrorists indefinitely. It’s tried and true and perfectly legal:
The government has a lesser burden in justifying military detention before a habeas corpus court than it has in convicting a terrorist of a crime at trial. The courts broadly accept that Congress has authorized military detention and that it is a perfectly legitimate form of terrorist incapacitation. … Military detention was designed precisely to prevent such fighters 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.
Oh the jaws that will drop in European salons! Oh the howls from the ACLU! But at this point, these are precisely the sorts of elites that the Obama administration should dismiss with a back of the hand. The American people and our enemies abroad look at the Obama detention operation with a mix of astonishment and contempt. The White House, however, created the fiction that only civilian trials are true to our “values” but now has figured out that they may be inimical to our national security. It has puffed and postured about closing Guantanamo but has now discovered its utility.
So what better time to wipe the slate clean, declare that Guantanamo will remain in operation for the “worst of the worst,” and relegate KSM and the rest to indefinite detention? That would redound to Obama’s political benefit and restore some oomph to a commander in chief badly in need of some; moreover, it would finally recognize the obvious: we’re at war, and combatants are not criminal defendants.