Are We There Yet?

NPR noted today that the administration is about to start up military commission trials in Guantanamo Bay again.

Congress has essentially barred the administration from conducting civilian criminal trials in the United States and has made it harder for the administration to transfer detainees to third countries. Conservatives now scream bloody murder every time a terrorism suspect is read Miranda rights, because they so strongly favor a military justice approach.

Even those experts who think that military commissions are just as fair to defendants on the merits as civilian criminal trials admit that politically they damage the U.S. reputation for fairness. There are also a host of unresolved legal issues surrounding a process that has been designed and redesigned after the detainees were put in custody.

But, the evidence that the civilian criminal justice system in the United States has an inappropriately low conviction rate (i.e. that it is acquitting guilty people with any frequency), or that the criminal sentences metted out in state and federal courts is too mild, is pretty much non-existent.

The argument that military commissions are faster is also counterfactual. The simple truth is that if everyone in Guantanamo Bay had been treated as a criminal defendant and promptly processed by the criminal justice system, every one of them would have been tried long ago, almost all of them, if not all, would have been convicted, the appeals would have run their course by now, deportation for those low level figures who completed their sentences would have been routine, and the high level figures would have been serving long sentences that while not indefinite, would still be very long. Meanwhile, the U.S. reputation for fairness would have been in tact.

Whatever benefits the U.S. sought to gain from a military as opposed to a civilian criminal justice approach in the Guantanamo detainee process has not materialized. But, the downsides to the military approach have become clear.