More on Military Detention

I received some unsurprisingly heated reactions to my op-ed in Saturday’s New York Times, which argued that the government should give up on prosecuting Guantanamo detainees and simply hold them in military detention instead.  (I have made versions of this argument before, including last spring with Ben and several years ago with Eric Posner.)  I am not against trials for terrorists in principle, if they can be made to work.   My argument for military detention as the solution for Guantanamo detainees is a pragmatic one based on the growing belief that, despite many efforts, trials for this population of terrorists simply are not (and will not be) legally or politically feasible. The government’s record in its nine-year effort to place GTMO detainees on trial is poor.  The Bush administration very much wanted to make commissions work, and it failed even after Congress gave its support in 2006.  The Obama administration got more help from Congress and gave commissions another try, but two years after the election commissions have borne practically no fruit.  I don’t fully understand why commissions have not done better; I think it has to do with the difficulties of creating and executing a new trial system from scratch.  Even when these difficulties are worked out, there are many novel legal questions that courts will have to sort out before the government secures a final conviction in a contested trial, especially when the charges concern conspiracy or material support.  If and when these legal issues are sorted out, commission convictions will still not be legitimate in the eyes of those of the persuasion of the New York Times editorial page.  Nor do foreign allies think much of their legitimacy, since only non-citizens are subject to their jurisdiction. Civilian trials have worked well to secure convictions of people captured inside the United States.  And a civilian trial might end up working in Ghailani's case.  But whatever the outcome in Ghailani, it is very hard for the government to secure convictions in civilian trials of people captured outside the United States when the prosecution depends on intelligence sources and methods and is infected by coercive interrogations.  The Obama administration is deeply committed to prosecuting Guantanamo detainees in civilian court.  But after two years and much effort, it has only the uncertain Ghailani prosecution to show for its efforts.  Attorney General Holder’s promise to try KSM in civilian court was met by fierce political resistance.  Congress would go ballistic if he tries to bring KSM to civilian court now.  And so KSM remains where he has been for many years – in military detention.  Moreover, as I emphasized in the NYT op-ed, the Obama administration has maintained, and Judge Kaplan basically agrees, that any trial defendants who are enemy combatants need not be released if acquitted.  A conviction of Ghailani against that explicit background assumption will be seen by many on the left and the right as illegitimate.  It is even worse for the legitimacy of trials if Ghailani is acquitted and then detained. In sum, my argument for military detention for the remaining Guantanamo detainees who are enemy combatants rests on three propositions.  First, as so many judges have now concluded, military detention is lawful if the government can prove to the habeas court that the detainee was part of al Qaeda or the Taliban or associated forces.  Second, military detention is the foundation for holding al Qaeda and Taliban terrorists, not only because it has in fact been the basis for holding the vast majority of them, but also because the government says it can revert to this rationale for continued detention should a trial fail.  And third, the trial alternatives, in practice, do not work well.  We keep trying to make the trial system work for this population, but it simply hasn’t.  Over time, because of ever-staler evidence and growing political controversy, trials are even less likely to work.  And the bouncing around of KSM and other detainees from detention to military commissions to possible civilian trial and then back to detention again, with uncertainty about which system is next, erodes confidence in the government’s overall approach. Some people conclude that if we cannot make the trial system work, we should release the detainees.  But no responsible president with the legal authority to hold them in military detention could do this.  So the president has two options.  He can keep trying to make the trial system work, with all of the legitimacy costs, political costs, intelligence costs, and resource losses that the effort entails, in hope that that he may eventually succeed.  Or he can cut his losses and opt for the simpler, easier, and more certain path of military detention, which is lawful and which will in any event be the basis for holding most GTMO detainees, but which also entails legitimacy and political costs.  My argument, in a nutshell, is that the latter approach is less costly than the former, all things considered. Finally, Rick Pildes had a thoughtful op-ed yesterday in the Washington Post, arguing for time limits on detentions.  I’ll address his argument and some related arguments in a few days.