Why the Hostility to Civilian Justice Anyway?

By Benjamin Wittes
Wednesday, June 18, 2014, 9:19 AM

I agree with Jack that military detention or trial by military commission are likely not available options for Ahmed Abu Khattala. But I'm hung up on a different point: Why are so many conservatives so married to the idea that detention or military justice is the right answer here? Every time we capture a terrorist suspect now, prominent conservatives knees immediately jerk to disparage the criminal justice option and insist that the suspect go to Guantanamo. From Politico:

“Ahmed Abu Khattala should be held at Guantanamo as a potential enemy combatant,” Sen. Lindsey Graham (R-S.C.) wrote on Twitter Tuesday. “Holding Khattala on a ship shows the haphazard approach which comes from not having rational detention & interrogation policies.”

Sen. Marco Rubio (R-Fla.) also said the administration should “immediately” transfer Khatalla to Gitmo. “In order to locate all individuals associated with the attacks that led to the deaths of four Americans, we need intelligence,” he said in a statement. “That intelligence is often obtained through an interrogation process.”

Now, to be clear, I have long defended the propriety of both the military commission system and law of war detention. So I have no in-principle problem with the use of either in the right circumstances. But the reflexive insistence that any given captive should go not only into the military system but to Guantanamo in particular strikes me as bizarre.

Leaving the law aside for a moment, the argument for Guantanamo is not that any given detainee should not be tried in the criminal justice system. As long as you're catching detainees one by one, separated by months, with ample time to plan the dispositions of their cases and to build criminal cases against them, the criminal justice system will function just fine. The argument for Guantanamo---or some other detention facility---has to do with numbers. What happens when you capture, say, 10,000 people and know that most of them are foot soldiers but some of them are Abu Khattalas and some of them are mistakes---but you don't know which are which? As John Bellinger has repeatedly pointed out, moreover, in the context of 2001 and 2002, the criminal law also did not yet cover the conduct of many people held at Guantanamo. So there was a substantive law problem in addition to a numbers problem.

Guantanamo, in other words, was a response to a specific set of circumstances---circumstances in which the criminal justice apparatus would simply have been overwhelmed by an influx of undeveloped cases. I believe it was a legitimate response, and I make no apologies for it. I also believe that at least some of the circumstances that gave rise to it could, and probably will, arise again.

But that does not mean it is the answer to all problems. And it certainly is not the answer to the problem of an individual terrorist captured after a long period of investigation and against whom the evidence will support a strong criminal case. Dogmatically insisting on its use in such situations is as silly as rejecting it in principle.