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• Saturday, May 23, 2009 11:55 AM

  More on acquittals and short sentences

  [Neal Katyal's buddy*] Jack Goldsmith and Benjamin Wittes, Dec. 8, 2008

  What about acquittals and short sentences? Any of the trial systems above might result in short sentences for or the acquittal of a dangerous terrorist. In ordinary criminal trials, guilty defendants often go free because of legal technicalities, government inability to introduce probative evidence, and other factors beyond the defendant's innocence. In terror trials, these factors are exacerbated by the difficulties of getting information from the place of capture, classified information restrictions, and stale and tainted evidence.

  The possibility of acquittals or short sentences is a problem for terrorist trials. The Bush administration reserves the authority to continue holding acquitted terrorists or even those convicted in the military detention system after their sentences have run. But this authority undermines the whole purpose of trials, and the Bush administration has never exercised it. Putting a suspect on trial can thus undermine detentions the government regards as important. For example, the government would have had little trouble defending the indefinite detention of Salim Hamdan, Osama Bin Laden's driver, under a military detention rationale. Having put him on trial before a military commission, however, it would have been unseemly to sustain his detention beyond the light sentence he is now completing back home in Yemen.

  This conundrum gives the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates. Should the government loosen the rules for trial to make convictions easier, or should it rely more heavily on noncriminal detention? Hard call.

  http://www.slate.com/toolbar.aspx?action=print&id=2206229

  Also see the "insane" ProPublica article windy_ quoted from above.

  *Jack L. Goldsmith and Neal Katyal, July 11, 2007

  The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.

  http://www.nytimes.com/2007/07/11/opinion/11katyal.html

  —EJ Read EJ's other letters
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