Eminent Domain

Law professors Jack Goldsmith and Eric Posner think that trials for terrorist prisoners at Gitmo and Bagram in Afghanistan are unwise. They degenerate into circuses, are used to rally other terrorist supporters, and are often hard to actually try. They have a different solution...

The Supreme Court has made clear that the conflicts with al-Qaeda and the Taliban are governed by the laws of war, and the laws of war permit detention of enemy soldiers without charge or trial until hostilities end. The purpose of wartime detention is not to punish but to prevent soldiers from returning to the battlefield. A legitimate wartime detainee is dangerous, like a violent mental patient subject to civil confinement, and that is reason enough to hold him. This has been the legal justification for terrorist detentions to date, and it will almost certainly be the basis for future detentions.

Instead of just locking them up and throwing away the key, Goldsmith and Posner have some ideas to assure the rest of the world that the system is fair and humane...

Congress should require a rigorous process for determining the status of enemy combatants that includes some form of representation for the detainee. It should establish periodic review, perhaps yearly, to determine whether the detainee remains dangerous and thus warrants continued detention. It should insist that detainees live in genuinely humane conditions appropriate for very long-term detention. And it should urge the president to endeavor to transfer detainees to their home countries when feasible, and with appropriate human rights guarantees.

Goldsmith and Posner understand that there are going to be people who are against this regardless of the protections put in place...

Such a system will not assuage the complaints of those, especially our allies, who reject the military model for terrorism and abhor long-term detention without trial. But Congress and the president have consistently endorsed the military model since Sept. 11. And our allies have not proposed a better system than military detention that both ensures American security and respects human rights. Politicized trials would do little more to address these concerns of our allies, and we have no feasible alternative to military detention for most terrorists in custody.

One thing is clear, this war is making us all reevaluate how the law, war, and rights interact. I think Goldsmith and Posner are right that the military model will continue to win out. Their proposal is probably the best system that we can devise under that model.