Thursday, March 18, 2010

Goldsmith and Wittes on Civilian vs. Military Courts

With all the recent argument over whether Guantanamo detainees should be tried in civilian or military court Jack Goldsmith of Harvard Law School and Benjamin Wittes from Brookings take a somewhat new angle - the argument isn't worth it. In this Washington Post article Goldsmith and Wittes acknowledge that there are benefits to pursuing trials in civilian court, and dangers about the unknowns of military commissions, but that at this point political capital is wasted on the argument. They suggest that politicians and the public need to accept the reality that we are stuck with many of these Gitmo detainees and that we should focus on "defining the contours of detention" rather than desperately try to figure out how to try all of the detainees.

I respect pragmatism as much as the next guy, but I'm not sure I can just accept Goldsmith and Witte's proposal. What they are saying is that indefinite detention should be accepted with respect to some current Gitmo detainees and, apparently, future captured terrorists as well. I don't believe that is something that we can accept. Even Goldsmith and Wittes admit that "legitimacy" and "historical judgment" are important considerations which civilian trials would provide; however, they come to the conclusion that fighting the alleged reality that many of the remaining detainees won't be tried means that the argument should be conceded. I don't think there is an argument that strikes more at the heart of this country's legal principles than detaining people indefinitely without charge and without trial, therefore I don't believe that the argument should be conceded. I agree that the reality for some detainees already at Gitmo is that they won't be able to be tried. Past bad decisions may have put this country in that paradoxical situation; however, I'm not willing to say that this country should just give up on the argument.

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