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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

The Case for Military Detentions

The Washington Post reports today, Friday November 19, 2010, in an article entitled "With Holder at the helm, detainee policy is a disaster," that "the closing of the Guantanamo Bay prison and civilian trials for terrorists were more than policy changes proposed by Barack Obama as a presidential candidate. They were presented as a return to constitutional government – a dividing line from an uncivilized past."

The Post reports that under Holder's influence, "American detainee policy is a botched, hypocritical, politicized mess." The  Obama administration and Eric Holder's larger realization appears to be, reports the Post, "that applying the rules of war in the midst of a war does not destroy the credibility of the rule of law or encourage terrorist recruitment. But his public inability to admit this shift seems to be leading to the worst of possible outcomes."

Jack Goldsmith and Benjamin Wittes write in The Washington Post Friday, November 19, in an article entitled "Ghailani verdict makes stronger case for military detentions," that the Ghailani verdict highlights the risk of terrorist trials in Article III courts and the benefits of military detention without trial.

The Obama administration's critics are missing the point on Ahmed Ghailani. Their reaction to his acquittal this week on 284 criminal counts and conviction on only one exaggerates both the vices of civilian courts and the virtues of military commissions. And it elides an important alternative to trial in either forum – military detention without trial – that today looks more attractive than ever as a means for incapacitating terrorists.

Wittes and Goldsmith advocate military detention as a superior option over trying terrorists in Article III courts or military commissions:

While the Ghailani verdict does not argue for military commissions over civilian trials, it does highlight the attraction of military detention without trial at all. This is the traditional ground on which enemy soldiers have been held in wartime. 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. Yet the Obama administration, while embracing the legality and necessity of military detention, has expressed a strong preference for trials instead.

 An editorial published in the Post yesterday, November 18, 2010, entitled "Acquittal in terror case shows justice system's strength," opines that the "stunning verdict" in the Ghailani trial is "an embarrassment for the Obama administration." Nonetheless, this week's verdict "should not deter officials from considering federal court prosecutions for others being held at the U.S. naval base." 

Military commissions are a legitimate option to try accused terrorists, and in rare cases – if the administration would have the courage to seek a legal framework, with judicial oversight – indefinite detention is as well. But the Ghailani verdict provides no sound argument to remove federal courts from the mix.


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