And Their Systems, Christ, They're Everywhere

Jack Goldsmith writes, re the Ghailani verdict:

Many will claim that Ghailani’s life sentence vindicates the trial system as a vehicle for incapacitating terrorists.  The verdict is a reminder that civilian trials have a successful track record in incapacitating terrorists.  But we must also remember that the basic outcome (long term detention for Ghailani) was foreordained: Both the Attorney General and the trial judge stated that Ghailani would likely be placed in military detention if acquitted.  Civilian trial supporters must ask themselves how legitimate the Ghailani verdict and sentence are against this background.

Whoa there. Goldsmith is right that the legitimacy of the process is in question. But the heart of the problem doesn't lie with the trial system's capacity for trying terrorists. It lies with Holder's and the judge's (and several other Obama administration officials') statement that the process doesn't mean a thing and the outcome of detention is, as Goldsmith writes, foredained. In other words, this is an indictment of a decision by policymakers -- I would call it cowardly -- that turns a trial into a shadow of what it's supposed to be.

The essential quandary for civilian trials (and military commission trials as well) is that the government cannot afford to bring cases against high-value terrorists if there is a chance of actual release, and so it will only bring cases in which it reserves the right to detain following acquittal (or possibly after the sentence has run).  There is no naked trial option for high-value GTMO terrorists – only trials with a backup of military detention.

But it doesn't have to be that way. If an administration decided that it would accept a "naked trial" option -- that is, having faith in the courts to do freely what they've done hundreds of times -- then the problem disappears. It's an indictment of the Obama administration that it mouths support for civilian trials for terrorists and then undermines them even when bringing cases before them.

Comments

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U.S. Canadian and International laws declares the United States government is guilty of war crimes. http://presscore.ca/2011/?p=1006
International Criminal Court launches Afghan detainee torture investigation of Harper government
http://presscore.ca/2011/?p=880
Harper BTW is 'Mini Me Bush' from north of the 49th
Why weren't Bush/Cheney/Rumsfeld etc. ad infinitum charged ?
A few reasons. http://en.wikipedia.org/wiki/American_Servicemembers%27_Protection_Act
http://www.aclu.org/national-security/military-commissions-act-2006
http://www.amicc.org/usinfo/administration_policy_BIAs.html
Not to mention that since the whole U.S. Congress had certified they would collectively defuse prosecution they were all War Criminals. Just a thought.