Terrorism Trials: Military Commissions

Is Opposition to Military Commissions in the GTMO Detainees’ Best Interests?

By Jack Goldsmith
Thursday, October 18, 2012, 1:08 PM

The Washington Post reports :

The Center for Constitutional Rights, a private group which has been deeply involved in detainee issues, praised Tuesday’s decision but said it does not go far enough.  The center says detainees at Guantanamo Bay are civilians under the laws of war and must be charged under domestic laws or released, rather than being tried under a system of military commissions.

The story quotes other human rights NGO representatives who seem similarly committed to ending military commissions altogether.  And of course many people outside these NGOs, including some in Congress, would like to end military commissions or minimize their availability and scope.  Which leads me to ask: If these groups are successful, are the GTMO detainees -- especially those potentially triable by military commission -- likely to be better off?

The CCR statement implies that if commissions ended, the USG’s only remaining options would be criminal trial or release.  But of course there is a third option: military detention until the cessation of the conflict.  The last eleven years – and especially the Obama continuation of core Bush GTMO detention policies, and continuing strong congressional and judicial support for those policies – have taught that continued indefinite military detention rather than release is the likely alternative scenario for anyone potentially triable by military commission.  We have also learned that for certain classes of al Qaeda detainees (think of Hamdan), conviction by military commissions brings a relatively quick path to release.  The bottom line, I think, is that GTMO detainees potentially triable by military commission who cannot actually be tried in a commission will likely remain in detention longer, under a lesser standard of proof, potentially for the rest of their lives.

Perhaps CCR and its allies believe that ending commissions will invite political or legal pressure to release the GTMO detainees or try them in criminal court.  But I think the opposite is much more likely: pressure to end military detention for the most dangerous GTMO detainees has a better chance of success if there is a functioning military commission process that could try and convict them, especially since (as the Obama administration concluded after a year of study) most of these dangerous detainees cannot (for evidentiary or law-related reasons, or both) be tried in a civilian criminal court.  Or perhaps the anti-commissions forces believe that the conflict with al Qaeda (as opposed to the Taliban) will end, requiring release, within a time period that is shorter than the average military commissions conviction.  Again, I doubt that is true.

All of this leads me to wonder whether those fundamentally opposed to commissions are acting in the detainees’ best interests, with the detainees’ interests defined as (a) maximizing their procedural rights, and (b) shortening their time in GTMO.  I am not suggesting bad faith.  I think those opposed to commissions are acting on their principled belief that commissions are a constitutional solecism that must not become entrenched.  The question is whether the pursuit of this principle accords with the interests of detainees, as defined above.  I am sure the anti-commission forces have an answer to this, i.e. that they have a theory about how the pursuit of the principle is what is best for the detainees.  I just do not know what the theory is.

PS: One consequence of my argument, if I am right, is that those who want to maximize the incapacitation time of high-level GTMO detainees should oppose military commissions.  Yet one is unlikely to see this possibility realized.  Does that suggest that my factual assumptions about the relationship between commissions and detention are wrong?  Or does it confirm that one's principles and one's instrumental goals are often at odds?