From Jack Goldsmith at the New Republic:
Please read the whole thing.
The Great Legal Paradox of Our Time: How Civil Libertarians Strengthened the National Security State
Goldsmith's argument is clearly true: the efforts by the GTMO Bar-- lawyers who zealously defended GTMO detainees-- to adjudicate the detention and prosecution of the GTMO terrorists in civilian court has primarily served to strengthen the president's power to enforce national security laws. Some of these newly-affirmed presidential powers could infringe on the rights of American citizens.
Terrorists held at GTMO are war criminals detained during combat operations. They are unlawful combatants (not in uniform and not in an organized military unit) who target innocent civilians. They belong in military courts, not civilian courts.
One of the salient criticisms of involving the civilian courts in what is obviously a military matter is that it sets precedents in ordinary civilian criminal law that may encroach on the rights of ordinary civilian defendants. That criticism was well-founded, and civil libertarians, previously so eager to bring issues involving war criminals into civilian courts, are beginning to learn.
The civilian courts should have no jurisdiction in military matters in war. Accountability of military justice in war is through the electoral process (the people can throw out the president and the congress), not through civilian judicial review. This is important for the prosecution of the war, and important for the protection of civilian rights that should not be altered by precedents based on the prosecution of war criminals.
Members of the GTMO Bar, through their hubris and fanaticism, have done real harm to our civil liberties.
This raises an interesting question. Many of the organizations and attorneys in the GTMO Bar have long advocated for totalitarian and violent causes-- assorted violent leftist radicals, communists, prison rioters, the Chicago Eight, etc. The notion that these barristers are devoted to civil liberty is difficult to sustain, given their predilection for totalitarian clients. These attorneys may be ethically marginal, but there's no reason to believe they are stupid.
Is the damage that the GTMO Bar has done to our civil liberties necessarily inadvertent?