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Terrorism Trials and Detention's Future

Author: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
November 23, 2010

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Ahmed Ghailani--the first Guantanamo detainee transferred to federal court for prosecution--was convicted last week on one charge related to the 1998 embassy bombings in Kenya and Tanzania but acquitted on more than 280 other charges, including murder. He faces twenty years to life in prison for that one charge, but the jury's decision and the debate surrounding it have short-term, medium-term, and long-term implications for counterterrorism policy.

In the short term, the Ghailani verdict is likely to affect the Obama administration's decision about whether to prosecute other Guantanamo detainees (including alleged 9/11 conspirators like Khalid Sheikh Mohammed) in federal court inside the United States or in military commissions at Guantanamo. The Justice Department has been eager to move ahead with cases, but awaits a White House policy decision on which forum to proceed in.

Advocates of federal court trials say Ghailani's one-charge conviction shows that civilian prosecutions will put suspected terrorists behind bars and do so with the greatest public and international legitimacy and long-term legal certainty. Critics argue it demonstrates that civilian trials risk turning dangerous terrorists loose because their rules are ill-suited for these types of cases; they also say civilian justice is "weak" and inappropriate in an ongoing war against al-Qaeda.

In reality, this one case hardly proves anything, and much of the rhetoric about it is overblown: there's no good evidence that military commissions are generally a more advantageous forum for the government than federal courts, for example. That said, the overall political reaction to this verdict will likely make it more difficult for the Obama administration to move forward in the near term with civilian prosecutions of other Guantanamo detainees, though the degree of difficulty may depend on the severity of the prison sentence Ghailani ultimately receives.

In the medium term (say, the remainder of this presidential term), a far more consequential decision than which forum to prosecute in is whether to prosecute most detainees at all, or instead to continue holding many of them without trial pursuant to the laws of war. There are several additional policy questions embedded here, including: Should they be moved to a facility within the United States or kept at Guantanamo? Should the executive branch work with Congress to set rules and standards for these detentions or let courts work them out through litigation? Even if it is left to the courts to sort out the rules for determining the detentions' legality, the executive branch alone, or the executive and Congress together, will need to establish protocols for periodic review of each case to determine that even legal detentions continue only so long as they are necessary.

In the long term looms a question about how the United States and its allies will combat security threats that have some attributes of crime and some attributes of war, yet don't fit neatly into either category.

The Republican takeover of the House of Representatives will make moving detainees to the United States more difficult and White House-congressional agreement on significant detention legislation less likely. The probable result is that most of the detainees currently at Guantanamo will still be there at the end of this presidential term. The review processes for deciding who to hold or release may be improved, the number of detainees held there may continue to decline slowly, and the executive branch's legal arguments may be refined and narrowed, but the resulting detention policy will still resemble the one inherited from the Bush administration.

In the long term looms a question about how the United States and its allies will combat security threats that have some attributes of crime and some attributes of war, yet don't fit neatly into either category. A root of this problem is that non-state groups can increasingly wage destructive violence at an intensity and sophistication previously only achievable by organized states or within territorially delimited areas. While the Ghailani case and the controversy over whether and where to prosecute the 9/11 conspirators focuses attention on the present conflict with al-Qaeda and the current population at Guantanamo, these broader problems will likely extend well into the future and to other groups and threats.

Given the nature of evolving national security threats, will there continue to be a category of individuals who must be detained long term even if they cannot be prosecuted successfully and consistently with other security imperatives? If so, the United States needs effective and fair rules for regulating such detention and must develop those rules through domestic and international processes that ensure they will be legally, politically, and diplomatically durable. If not, the government needs to agree upon and refine rules for prosecuting (which may include military commissions, or perhaps other changes to our civilian criminal justice processes) and acknowledge the downside risks (which may include releasing dangerous individuals or a greater resort to other tools, including lethal force or reliance on detention and interrogation by partner governments).

So far the Obama administration has been reluctant to come down strongly on this question, preferring instead to cast its detention dilemmas as inherited from Bush administration blunders. In some cases it has, indeed, been handicapped by Bush administration mistakes. But, especially while the Obama administration continues to deliberate internally on its own long-term vision of this issue, its policy will remain susceptible to uncertainties and political swings generated by individual cases like Ghailani's.

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