Last week's Senate Armed Services Committee hearing on the subject of using military commissions to try detainees in the conflict against Al Qaeda and the Taliban featured an exchange that could have been scripted by Lewis Carroll. Senator Mel Martinez (R-Fla), perhaps hoping to discredit the idea that detainees should be tried in regular court proceedings, asked Defense Department General Counsel Jeh Johnson what would happen to a detainee who was acquitted. He clearly expected Johnson to say that the detainee would be released. Johnson instead answered that the administration could continue to detain the acquitted individual indefinitely, using the authority granted by Congress under the 2001 Authorization for Use of Military Force.
Senator Martinez responded with an incredulous smile. "So the prosecution is moot?"
Johnson, of course, denied the characterization. But Senator Martinez had it exactly right. The primary purpose of putting suspected criminals on trial is to determine whether they should be imprisoned (or otherwise punished). If the government intends to incarcerate them regardless of the verdict, then the trial is fundamentally just a show. As the Queen of Hearts said in Alice in Wonderland: "Sentence first -- verdict afterwards."
For some time now, the Obama administration has appeared to be headed for a modified version of the Queen's system. By the president's own admission, he plans to determine whether to release any given Guantánamo detainee first. For those detainees deemed "too dangerous to release," he will then choose among different systems of judicial hearings (including two newly-created systems) based on which system appears sufficient to ensure continued detention. Detainees who can be convicted in regular federal courts will be sent there; detainees who could not be convicted in regular courts will be sent to specially constituted military commissions that employ less rigorous procedural safeguards; and detainees who could not be convicted anywhere will be held under an as-yet unspecified preventive detention regime involving periodic judicial review.
The notion of letting the outcome determine the tribunal, rather than the other way around, should ring alarm bells. Still, before last week's hearing, it appeared that the various tribunals would have at least some meaningful effect on the outcome. While the administration could certainly "game the system" by choosing the forum most likely to result in continued detention, the administration might gamble wrong, sending a detainee to be tried in a court that ultimately acquitted him. In such a case, many of us assumed that the administration would defer to the court's judgment and allow the detainee's release. The verdict would indeed determine the sentence.
That may yet be the administration's intent. By invoking the possibility of indefinite detention for acquitted detainees, Johnson may simply be reserving a power that the administration has no plans to use. And, to be fair, the administration has acknowledged at least one setting -- habeas review -- in which judicial review may lead to the detainee's release. The administration's as-yet undisclosed preventive detention regime might provide another such setting.
Nonetheless, if habeas and periodic review of indefinite detention are the only true judicial backstops -- if the criminal trials themselves have much or as little effect as the administration chooses to give them -- then all of the current debate over the proper forum and procedures for trying detainees may be no more than an extended civics lesson for late-night watchers of C-SPAN. Even those who are untroubled by the idea of holding detainees indefinitely should be irked by the waste of time and resources involved in putting on such show trials.
For the rest of us, the issue goes deeper. Much of the American public has begun to question the legitimacy of applying the traditional "law of war" detention rule -- under which combatants may be detained for the duration of hostilities -- to a conflict in which "combatant" can mean almost anything and hostilities may never definitively end. President Obama himself is clearly uncomfortable with this approach, or at least with its appearance. That's why he has pledged to try as many detainees as possible in Article III courts or military commissions: to confer additional legitimacy on the system by minimizing reliance on indefinite detention. That goal is utterly subverted when the trials are "heads we win, tails you lose" affairs that default to indefinite detention in the event of acquittal.
It's time to have an honest discussion about whether we should continue to subject people to indefinite detention in the current conflict. If that's an acceptable option for any given detainee, and if the decision to continue that person's detention already has been made, then perhaps we should dispense with the show trials. But if it's not an acceptable option, then assigning a verdict after the sentence already has been passed won't legitimize it. Even Alice knew that much.
Elizabeth Goitein is the Director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law.
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