In seeking to defend the call for a novel means to prosecute persons suspected of terrorism , Ben deploys phrases like "viable trial regime" and "what we want as a society" and "another legitimate system." He contends that absent adoption of this new-fangled mechanism, "we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe." Packed in that single paragraph are myriad assumptions. But the notions that due-process-lite tribunals can be "legitimate," and that without them "we ... as a society" will have to resort to an "administrative detention apparatus," demand debate, not positing as base-line assumptions.
One need look no further than the Diplock system, invented by our legal progenitor, Britain, to raise immediate questions about the assertion that such tribunals can be legitimate. And as Deborah notes, it's a wonder why more don't look to "the good old-fashioned court-martial ."
As for "administrative detention apparatus," can it be that this is the inevitable fallback? There are doubtless others. As I write in conclusion of Punish or Surveil , in which I measure military commissions against federal criminal courts and ordinary courts-martial, traditionally individuals whom government deems but cannot prove to be a threat were handled outside the criminal justice system, through surveillance . Even today, even with the high detention rates at places like Bagram, this is how most such persons are handled. And even were novel tribunals to be adopted, this would remain the case.
A final question:
If a new form of criminal trial and/or administrative detention are the only options, how have we, as a society whose Constitution is 228 years old, survived without them?
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