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Out of CommissionWhy the government may lose the Guantanamo trials, even if it wins.

By Jack Goldsmith and Eric Posner
Posted Wednesday, Feb. 13, 2008, at 6:38 PM ET

(Continued from page 1)

But whatever approach the government takes, we can expect these trials to be messy and unsatisfying. Politically tinged trials always are, for defendants who consider themselves enemies of the state usually seek to deny the authority of the government to try them. The long history of such trials in the United States—including the trials of pro-Jefferson newspaper editors at the end of the 18th century, Civil War protesters, anarchists, conscientious objectors to World War I, Nazi sympathizers during World War II, and Vietnam War protesters—reveals a series of Pyrrhic victories (and occasional defeats) for the government. Invariably, many come to believe that the government is using the defendants—however unsympathetic they might be—to further its political goals.

Do the potential benefits of trials in military commissions still outweigh the downsides we've enumerated here, or might civilian trials be a better route? The answer to this question requires a difficult-to-assess tradeoff between enhanced legitimacy in civilian trials versus enhanced security and flexibility in military commissions. There is, of course, a third way: long-term noncriminal detention of alleged terrorists because of their dangerousness. This last approach has been the one the government has used for most al-Qaida suspects to date, and it builds on the traditional power to detain enemy combatants during wartime. Such a system—if it were to be amplified and blessed by Congress—could serve as a legitimate legal basis for very long-term detention.

To be sure, continuing a system of long-term detention would have its own downsides: It would not afford a successful vehicle for telling the world the al-Qaida story, and it would not allow for the death penalty. But at least it would provide for continued incapacitation of suspected terrorists without the necessity of a full-blown trial that could be manipulated to al-Qaida's benefit.

The current system of military commissions was originally designed to provide quick justice in ways that denied defendants the opportunities for propaganda available in the defendant-friendly civilian system. But six and a half years after 9/11, we have no concluded trials in a system that has little credibility, and that is still subject to ongoing legal review. And in the wake of so much criticism, review, and re-ordering, the government may now be forced to mirror, and in some respects even exceed, the procedural protections available in the civilian system, thereby compromising the very features that made military commissions so attractive in the first place. If we find ourselves, six years later, struggling with a system that is becoming a pale reproduction of the civilian criminal courts, it may be time to ask why we aren't using civilian courts in the first place. The answer to that question may leave nontrial detention as the only option, and not merely the best one.

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Jack Goldsmith, a professor at Harvard Law School, worked in the general counsel's office in DoD from 2002 to 2003, and is a member of the Hoover Institution Task Force on National Security and Law. Eric Posner is a professor at the University of Chicago Law School and co-author of Terror in the Balance: Security, Liberty and the Courts.
Photograph of Khalid Sheikh Mohammed courtesy FBI/Getty Images.
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