The Ghailani Sentence

By Jack Goldsmith
Tuesday, January 25, 2011, 2:33 PM

Many will claim that Ghailani’s life sentence vindicates the trial system as a vehicle for incapacitating terrorists.  The verdict is a reminder that civilian trials have a successful track record in incapacitating terrorists.  But we must also remember that the basic outcome (long term detention for Ghailani) was foreordained: Both the Attorney General and the trial judge stated that Ghailani would likely be placed in military detention if acquitted.  Civilian trial supporters must ask themselves how legitimate the Ghailani verdict and sentence are against this background.  The essential quandary for civilian trials (and military commission trials as well) is that the government cannot afford to bring cases against high-value terrorists if there is a chance of actual release, and so it will only bring cases in which it reserves the right to detain following acquittal (or possibly after the sentence has run).  There is no naked trial option for high-value GTMO terrorists – only trials with a backup of military detention.

Even with this caveat, I doubt that the Ghailani verdict points the way for more civilian trials of GTMO detainees in the near future.  There don’t seem to be that many cases that the administration thinks it can win in civilian court.  But more importantly, this verdict won’t change congressional resistance to such trials, and the President is unlikely to expend political capital in a presidential election cycle to reverse this resistance.  The Obama administration is apparently trying to revive military commissions, but that slow path is full of legal uncertainties.  For the foreseeable future, then, the administration will likely continue to rely on military detention, the default mode of terrorist incapacitation now for over a decade.