Largely overlooked in Judge Kaplan’s Ghailani Order is his statement that Ghailani’s “status as an ‘enemy combatant’ probably would permit his detention as something akin to prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.” Attorney General Eric Holder agrees with the general point, as does Defense Department General Counsel Jeh Johnson.
This makes me wonder why the government is bothering to try Ghailani. The trial will be legally and politically difficult, not only because of the problem of coercive interrogations, but also because of the problem of revealing sources and methods more generally. It can hardly bring the hoped-for legitimacy benefits if the government and the judge publicly agree that the defendant if acquitted will remain behind bars indefinitely. And the trial is unnecessary to keep Ghailani off the streets, since he can be held in military detention.
Military detention has been the default and foundational basis for incapacitating al Qaeda and Taliban terrorists for almost a decade. The United States government has tried very hard to bring some of these terrorists to military commissions, but that has not worked out for either the Bush administration or the Obama administration. While it has had some success in trying in civilian courts al Qaeda terrorists (like Richard Reid and Faisal Shahzad) who plead guilty, civilian trials in which al Qaeda defendants contest the charges (e.g. Ghailani) or the sentence (e.g. Moussaoui) have proven to be large headaches for the government. And they are unnecessary headaches, since courts have made clear that indefinite military detention for terrorists in or closely connected to al Qaeda and the Taliban is lawful. As Ben and I have argued before, the sooner the government gets comfortable relying on military detention for its highest value detainees, the sooner the nation will resolve the terrorist incapacitation conundrum.