Jonathan Hafetz is a former ACLU attorney who helped represent Ali Saleh Kahlah al-Marri. Al-Marri was one of the Bush administration's two very unsuccessful experiments with using military detention for domestic terrorism captures -- al-Marri was held in a brig in South Carolina for more than six years, during which he gave up no intelligence information. After being transferred to the criminal-justice system, he cooperated with investigators before ultimately pleading guilty to terrorism charges under the Obama administration, which was trying to avoid a collision course with the Supreme Court.
Hafetz is challenging the argument offered by Ben Wittes and Jack Goldsmith that in the future, the Obama administration should rely on indefinite detention rather than attempting to try terrorists at all:
But adopting the Wittes-Goldsmith approach would be short-sighted. Federal criminal trials can help repair some of the damage to U.S. credibility caused by torture and other post-9/11 practices. They also offer Obama a unique teaching moment. Criminal trials are not merely about a “defendant's rights”; they also embody a collective yearning to see justice done. Paradoxically, the trial of the 9/11 mastermind—viewed as the most politically sensitive—is in many ways the easiest choice since the government's evidence for conviction there is so strong.
Principle should guide the administration's decision on Guantánamo's future. But the administration might consider the political gain in saying that it put those responsible for the worst terrorist attacks in the country's history on trial in a process that was secure from challenges to its legitimacy and convicted them. Surely that is not “more trouble than it's worth.”
This doesn't apply to Wittes and Goldsmith, but one of the things that irritates me the most is when conservatives shriek about the government "giving terrorists constitutional rights." The Constitution is as much about what rights individuals have as it is about putting limits on what the government itself is allowed to do to individuals. When conservatives are trying to gut the welfare state instead of due process rights, that's the kind of constitutional vision conservatives find most appealing.