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What to do with captured terror suspects

FBI Photo of Ahmed Khalfan Ghailani

FBI Photo of Ahmed Khalfan Ghailani

Former Assistant Attorney General, Jack Goldsmith, has an op ed in yesterday’s New York Times suggesting how the United States should deal with captured terror suspects. His bottom-line answer: detention without trial. Goldsmith writes:

THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.

The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial. Military detention was once legally controversial but now is not. District and appellate judges have repeatedly ruled — most recently on Thursday — that Congress, in its September 2001 authorization of force, empowered the president to detain members of Al Qaeda, the Taliban and associated forces until the end of the military conflict.

Because the enemy in this indefinite war wears no uniform, courts have rightly insisted on high legal and evidentiary standards — much higher than what the Geneva Conventions require — to justify detention. And many detainees in cases that did not meet these standards have been released.

Still, while it is more difficult than ever to keep someone like Mr. Ghailani in military detention, it is far easier to detain him than to convict him in a civilian trial or a military commission. Military detention proceedings have relatively forgiving evidence rules and aren’t constrained by constitutional trial rules like the right to a jury and to confront witnesses. There is little doubt that Mr. Ghailani could be held in military detention until the conflict with Al Qaeda ends.

Why, then, does the Obama administration seek to prosecute him in federal court? One answer might be that trials permit punishment, including the death penalty. But the Justice Department is not seeking the death penalty against Mr. Ghailani. Another answer is that trials “give vent to the outrage” over attacks on civilians, as Judge Kaplan has put it. This justification for the trial is diminished, however, by the passage of 12 years since the crimes were committed.

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.

Military commissions have secured frustratingly few convictions. The only high-profile commission trial now underway — that of Omar Khadr, a Canadian who was 15 at the time he was detained — has been delayed for months. Commissions do not work because they raise scores of unresolved legal issues like the proper rules of evidence and whether material support and conspiracy, usually the main charges, can be brought in a tribunal since they may not be law-of-war violations.

Civilian trials in federal court, by contrast, often do work. Hundreds of terrorism-related cases in federal court have resulted in convictions since 9/11; this week, the would-be Times Square bomber, Faisal Shahzad, was sentenced to life in prison after a guilty plea.

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.

A further problem with high-stakes terrorism trials is that the government cannot afford to let the defendant go. Attorney General Eric Holder has made clear that Khalid Shaikh Mohammed, the 9/11 plotter, would be held indefinitely in military detention even if acquitted at trial. Judge Kaplan said more or less the same about Mr. Ghailani this week. A conviction in a trial publicly guaranteed not to result in the defendant’s release will not be seen as a beacon of legitimacy.

The government’s reliance on detention as a backstop to trials shows that it is the foundation for incapacitating high-level terrorists in this war. 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. (emphasis added)

On its face, Goldsmith’s proposal seems logical. By analogy, when dealing with combatants that are clearly prisoners of war, the Geneva Convention allows a state to detain them until the conflict is over. And this is what Goldsmith is proposing– to detain persons like Ghailani and Khalid Shaikh Mohammed until “the conflict with Al Qaeda ends.” But herein lies a couple problems:

First, what does it mean to say “the conflict with Al Qaeda ends”? We all knew when World War II ended, but when will the war with Al Qaeda end?  Does it mean when Osama Bin Laden is killed or captured? Does it mean when no group calling itself “Al Qaeda exisits”? Al Qaeda is already quite good at morphing itself; if current terror operatives changed there name would that be enough? Or does it mean when the “war on terror” has ended? I am sympathetic with concept that combatants can traditionally be held during the duration of the conflict, but with the current conflict such principle could led to simple indefinite detention.

Second, at some level isn’t the “conflict” as much between the person and the United States as it is between Al Qaeda and the United States? Even if Al Qaeda were destroyed and Bin Laden somehow “surrendered,” would the likes of Khalid Shaikh Mohammed upon release return to a peaceful existence? In a standard war, the notion is that the conflict is between the states that are fighting– between German and the United States, to continue with the World War II example. As a consequence, when the war is over, POW’s are released because they as individuals have no fight with the state that had detain them. They do, in fact, return to their homes and try to begin civilian life. But would KSM do that? Or would he merely seek other ways to continue challenging the United States?

So what is the answer?

Part of the problem, as suggested above, is that the United States has been trying to have it both ways. On the one hand, we want to think of terror suspects as combatants and, like traditional combatants, detain them until the conflict is over. And yet, on the other hand, we want to treat them as criminals– hence the term that was popularized in the previous Administration– “unlawful combatants.”  I am increasingly coming to believe that we cannot have it both ways. It seems to me if the suspects that are being detained have committed acts of terrorism, acts which by definition are illegal (see below), then they should be charged and tried in Federal District Court for those acts. I understand the standard of proof that operates in criminal cases and realized that we may not be able to convict every person that we truly believe has committed illegal acts because of compromised evidence or other problems.  But at some level, we have the same challenge with drug lords and other members of organized crime syndicates. Arguably, such crime syndicates wreak as much havoc, death, and destruction against the United States as Al Qaeda has. Undoubtedly, federal, state, and local law enforcement agencies are familiar with hundreds of persons that they know belong to such syndicates.  Yet, we don’t yet have the evidence to bring them to trial. What would we think if the FBI were to arrest a well-know organized crime kingpin and detain him without trial until such time as “his organization ceased its activities”?

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For the record, I have previously offered the following definition of terrorism: “terrorism will be defined here as the threat or use of force, undertaken for political purposes, by a non-state actor that intentionally targets civilians and other noncombatants in violation of existing law relating to the conduct of hostilities.” Anthony Clark Arend, International Law and Rogue States: The Failure of the Charter Framework, 36 New Eng. L. Rev. 735 (2002).

(HT: Neal Sonnett)

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.