Law professor Jack Goldsmith argues that there are three reasons to offer suspected terrorists a criminal trial: "trials permit punishment, including the death penalty", "trials 'give vent to the outrage' over attacks on civilians", and
The final answer, and the one that largely motivates the Obama administration, is that trials are perceived to be more legitimate than detention, especially among civil libertarians and foreign allies.And let's not forget, serve as a model of American justice for those in nations whose totalitarian leaders will happily agree with Goldsmith's central thesis, that there's no point in giving a trial to somebody you have no intention of ever releasing, save perhaps for a show trial with a predetermined outcome.
Although he concedes that civilian trials "often do work" and notes that "[h]undreds of terrorism-related cases in federal court" have been successfully prosecuted, Goldsmith dances around the central problem in holding civilian trials for certain key Guantanamo detainees,
But Mr. Ghailani and his fellow detainees at Guantánamo Bay are a different matter. The Ghailani case shows why the administration has been so hesitant to pursue criminal trials for them: the demanding standards of civilian justice make it very hard to convict when the defendant contests the charges and the government must rely on classified information and evidence produced by aggressive interrogations.The use of classified information has been raised as a specter in many prior terrorist prosecutions, but has not prevented successful prosecution of even one case. Goldman himself has told us in relation to an earlier argument that many years have passed since the time of the offenses being prosecuted; it is difficult to imagine that any legitimate secrets would have to be disclosed at a trial, particularly given the track record of prosecution of similar suspects for similar acts without any such disclosure. So, Goldsmith's euphemism aside, what we're really talking about is the use of coerced confessions, principally information obtained through acts like waterboarding that the Bush Administration's defenders insist "aren't torture (when we do it)".
Goldsmith apparently can't build a general case against trial so he instead focuses on a specific case, that of "Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa". He notes that a federal judge excluded from evidence as fruit of the poisonous tree the testimony of a witness who the government "learned about... through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A." He fails to mention a second problem with the testimony of that witness that was raised by the trial judge, whether the statements elicited from him were also coerced. Even when the judge's concerns were clear, the government chose not to present an affidavit from the witness to challenge the judge's perception.
As a former member of the Bush Administration I can understand why Mr. Goldsmith has chosen to ignore the fundamental problem - the choice by the Bush Administration to behave lawlessly. Bush and Cheney lack the courage to defend their actions, instead playing games of semantics ("It's not torture, it's an 'enhanced interrogation'") or invoking national security ("We can't afford another terrorist attack, so we're entitled to ignore the rule of law - and no, we don't have to disclose or justify our actions to anyone").
I'll admit that I have some difficulty giving the Bush/Cheney regime benefit of the doubt on issues of executive power and privilege, as their across-the-board pattern was to take an expansionist view of executive power and to act aggressively to test the limits of executive power. Also, if the Bush Administration thought its actions were defensible you would think it would have actually offered a defense of them rather than trying to reshape the debate and redefine the language used to describe its actions.
Yet even if we assume that in this specific context they believed that their actions were necessary in the defense of the state, you can't avoid the fact that they and their advisers - a group that would appear to include Goldsmith - knew what the consequences of their actions would be. They chose not to work through Congress or seek judicial review. It was no surprise to me to see Cheney's smug response to candidate Obama's proposal to close the Guantanamo Bay detention camp and try the suspects held there - because he knew that once the Obama Administration looked inside the case files it would find that between genuine state secrets and the use of torture and other questionable tactics (both by us and by regimes that 'assisted' us with detentions and interrogations, or provided information from their own prisoners) the civilian trial of many or most of the remaining Guantanamo detainees would be difficult to impossible. I would expect in many of the cases that even in the context of military tribunals, which Goldsmith assures us "have relatively forgiving evidence rules and aren’t constrained by constitutional trial rules like the right to a jury and to confront witnesses", trial would be difficult - at least, a trial expected to withstand appellate review.
So yes, as Goldsmith says, due to the choices of his former employer it is extremely difficult to try some of the high profile terrorist suspects presently detained by the United States, and as we don't want to pay the price defined by our nation's laws and Constitution for cases in which evidence is obtained unlawfully or where we're not willing to actually present evidence in court, it certainly is easier to detain people, as Goldmith euphemistically puts it, "until the conflict with Al Qaeda ends" - that is, indefinitely. Life in prison without charge or trial. Those who defend the choices of the Bush Administration no doubt happily endorse Goldsmith's description of what this means,
The administration would save money and time, avoid political headaches and better preserve intelligence sources and methods if it simply dropped its attempts to prosecute high-level terrorists and relied exclusively on military detention instead.But really, if you think through the implications, the only people who should be happy with Goldsmith's preferred outcome are the world's remaining tyrants, despots and dictators.