On his new blog, The Loyal Opposition, New York Times Editorial Page Editor Andrew Rosenthal has this post arguing that "One particularly compelling reason [not to use military commissions] is that tribunals do not seem to have the authority to actually free defendants." Rosenthal is concerned about the recent briefing in the Nashiri case, of course, and the government's affirmance of--as Bobby puts it here--"the theoretical availability of a post-acquittal military detention option." Rosenthal writes:
Guess what? Military prosecutors cannot guarantee Mr. Nashiri’s release. Oddly enough, there is a perverse legal logic at work here: As an “unlawful military combatant,” Mr. Nashiri can be held under the laws of war for as long as hostilities continue. Whether he is put on trial is an entirely separate issue. Criminal prosecution has no bearing on his status.
The prosecutors seem to have described the system correctly; that’s not the real scandal here. The scandal is the system itself. Mr. Nashiri and the other accused plotters of the Cole bombing should never have been declared “unlawful military combatants” and sent to Guantanamo in the first place.
They should have been held in federal prisons for prosecution by Justice Department lawyers, who would have had them tried and convicted, if proven guilty. That’s what federal prosecutors do.
Indeed, it is. But there's an itty-bitty problem with this show-stopper of an argument against military trials: The exact same issue arises when federal prosecutors do what they do to someone who is reasonably classifiable as an enemy combatant subject to detention under the AUMF. The only reason it never arises is that acquittals in major terrorism cases are so rare.
Consider the case of Ahmed Ghailani, convicted in federal court in New York a year ago in a trial that Rosenthal's page hailed as follows: "What really makes this country strong is that it is based on laws not bluster. The federal courts have proved their ability to hold fair trials and punish the guilty. That is what we call getting the job done."
How did the judge in that case describe the relationship between a hypothetical acquittal and the defendant's freedom? Wrote Judge Lewis Kaplan at the time:
[Ghailani's] status as an "enemy combatant" probably would permit his detention as something akin to a 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 (emphasis added).
That detention would be subject only to habeas review proven to a preponderance of the evidence standard, not proof beyond a reasonable doubt--exactly the same as it will be if Nashiri were to be detained following an acquittal by his military commission.
What creates the Catch-22 Rosenthal describes is not the fact that Nashiri's trial is taking place in a military commission. It is, rather, an anomaly that arises whenever a detainee is, at once, subject both to criminal trial (in whatever forum) and subject to non-criminal detention as well. It arises in the immigration context--where people acquitted of criminal charges are remanded to immigration authorities for detention and eventual deportation. And it arises as well in the mental health context, where those acquitted by reason of insanity are committed to mental institutions--and sex offenders who have served their sentences are as well. It may be a Catch 22, but it has virtually nothing to do with the difference between federal courts and military commissions. And it doesn't seem to cause Rosenthal to lose sleep when federal courts are "getting the job done."