Mike, I appreciate your comments, and I’m with you in supporting some meaningful check on the government’s power to detain and punish suspects, even if they are alien enemy combatants in the War on Terror. I just don’t think the ordinary civilian courts are properly suited to the task.
We need a serious national conversation about this, but the Obama administration is obfuscating the issue by pretending it’s easier than it actually is. One of the chief fantasies is that civilian trials can play the same role and provide the same protections for high-profile al-Qaeda suspects and ordinary criminal defendants. This cannot be so. Put aside for a moment the questions of whether the al-Qaeda defendants can get an impartial jury in New York (you think so, I don’t).
One fact remains that undercuts the very concept of a criminal trial: There is no way the government is willing to release these al-Qaeda defendants if they are acquitted. To do so would be politically and practically impossible in the context of the ongoing war effort. (My wife Elizabeth called me to the TV yesterday as Attorney General Holder was being asked at a press conference, What will you do if the terrorists are acquitted? His answer, in essence: They won’t be acquitted.) This evasion masks an obvious truth, that the stakes in the War on Terror are simply too high for the government to release a suspect known to be a committed terrorist (especially if the release would come from a civilian procedural technicality). Democratic Senator Jack Reed admitted as much yesterday on Fox News Sunday, when he said that the “principle of preventive detention,” “which is recognized during hostilities,” would allow the government to retain custody even in the event of an acquittal.
The fact that the government is not prepared (indeed, it could not responsibly be prepared) to release the al-Qaeda suspects upon a civilian-trial acquittal renders the entire trial process dishonest. The trials are not being used to determine the fate of the defendants, but rather to confer a false air of legitimacy to their ongoing detention. The shame is that this deception is unnecessary: Terrorists can be legitimately detained without civilian trials, since they pose a clear and present danger to our national security in the midst of an ongoing military operation. The evidentiary issues are much more difficult and the costs of false acquittals are much higher in this context, which justifies a level of due process that is less exacting than in civilian-criminal cases. The Bush administration was willing frankly to acknowledge this reality. The Obama administration oscillates between trying to wish it away and concealing it.