Ben Wittes and Jack Goldsmith make the case:
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. The Post reported last weekend that the administration is rethinking that stance with respect to the Sept. 11 conspirators, and Ghailani's verdict should spur that reconsideration.
The argument against giving Ghailani a trial and keeping him in military detention is far weaker than it would be with another detainee who was, say, captured on a battlefield in Afghanistan while fighting the U.S. military. After all, Ghailani's crimes took place in 1998, prior to the 2001 Authorization to Use Military Force, and the other captured accomplices, who had far greater roles in the plot, were all sentenced to life imprisonment by a civilian court in October 2001, just blocks from the ruins of the World Trade Center. Refusing to try anyone in the future -- especially people whose crimes took place prior to 9/11 -- would mean that the United States is afraid of the fairness of its own court system.
Former Bush speechwriter Michael Gerson, meanwhile, makes an intellectually dishonest argument for the use of military commissions, while suggesting Attorney General Eric Holder resign:
Holder clearly believes that his virtue was violated by politics. But there is a better explanation. President Obama's undeniable continuity in conducting the war on terrorism - the use of indefinite detention, Guantanamo Bay and targeted killing of terrorists - reflects the continuity of the threat. These measures did not result from some anti-constitutional ideology. They were difficult, conflicted but reasonable responses to an ongoing terrorist offensive - a war that is more than a metaphor.
Civilian courts were not designed for high-profile enemy combatants such as Mohammed, who would use a New York trial to embrace martyrdom and encourage violence. The use of military tribunals at Guantanamo Bay is fully constitutional, approved by Congress and consistent with wartime precedent.
Actually, some of these things are quite literally anti-constitutional, as in they were ruled unconstitutional by the Supreme Court. The effort to place suspected terrorists at Guantanamo in order to put them out of the reach of court scrutiny couldn't be more deliberately anti-constitutional. Of the three things that Gerson mentions, only two represent willful continuity on behalf of the current administration. The closure of Guantanamo, something Gerson's old boss supported, has failed not because of the facility's intrinsic usefulness in the fight against terrorism but because Democrats have been cowed out of granting the administration the money to close it and Republicans have rallied around it as a symbol of their total opposition to the administration's agenda. But while Gerson is smugly noting the continuity in matters of national-security policy between this administration and the last, he might find it appropriate to call out the dishonest hyperbole of his Republican colleagues, who have sought to portray the current administration's efforts as some kind of radical departure from the previous eight years.
We have in Ghailani, a literal example of a terrorism trial in a civilian court, in which there were no safety problems, no long rants declaring the virtue of jihad, and no paeans to martyrdom. And when other accused terrorists have tried to turn courtrooms into soapboxes, they've been shut down by federal judges who refused to countenance such nonsense. Moreover, what Gerson leaves out, is that the use of civilian trials was the default policy of the Bush administration, as most of the hundreds of terror convictions in civilian courts that have occurred since 9/11 took place on the prior president's watch.
The frustrating thing is, though, that I suspect that ultimately, the administration may take Wittes' and Goldsmith's advice. The fact-free political hysteria that has characterized the aftermath of the Ghailani verdict will likely convince an administration averse to political controversy that taking a stand on principle just isn't worth it. Just consider the absurdity of this political lesson: Having successfully convicted a terrorist in open court, the decision the administration is being pressed to make is that he shouldn't do it ever again.
