Let’s unpack a claim about the Guantanamo detainees, as summarized by Marc Ambinder:

It had been the hope of administration legal advisers that a majority of the 240 [Guantanamo detainees] — perhaps a large majority — would be tried in federal courts. Then they discovered that the evidentiary thresholds for doing so were too high given the quality of information the Bush government had collected about the detainees, and they subsequently concluded that Article III trials wouldn’t be as swift as an option that they wanted to reserve for only a couple dozen high-value detainees: the military commissions.

To say that the "evidentiary thresholds" for trying the detainees in civilian court is "too high" is another way of saying there isn’t sufficient evidence on the face of it for the constant invocation that the detainees are terrorists. If it can be proven that a detainee has given material support to terrorists or contributed to an illegal act, he ought to be convicted. If it can’t, then a detainee ought to be freed. What would happen in that case? Someone who isn’t a terrorist would be free.

The detainees, according to the Supreme Court’s Boumediene decision last year, have the right to habeas corpus, full stop. There’s no putting that bit of juridical toothpaste back in the tube. As a result, they have to be provided with some sort of trial. Everything else is denying reality. The military commissions represent a method of getting convictions rather than a method of getting justice. Just saying someone is a terrorist over and over again doesn’t make it the case.

Well, you say, what about battlefield-collected evidence that might not pass the muster of a criminal court? A reasonable objection. But it’s hard to believe there are actually judges in these cases who would be anything but deferential to prosecutors’ claims about what ought to be admissible — in camera evidence, stuff like that — and even harder to believe that any American jury wouldn’t be extremely reluctant to render a not-guilty verdict.

Crossposted to The Streak.

Spencer Ackerman

Spencer Ackerman

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