In order to achieve my value I offer the criterion of Political Realism, a view of

international politics that stresses its competitive and conflictual side. Realists
consider the principle actors in the international arena to be states, which are
concerned with their own security, act in pursuit of their own national interests, and
struggle for power. Classical realists do not reject the possibility of moral judgment
in international politics. Rather, they are critical of moralism abstract moral
discourse that doesnt take into account political realities. They assign supreme
value to successful political action based on prudence.
Prudence-2. caution with regard to practical matters; discretion.
3. regard for one's own interests.
CONTENTION 2- CONGRESS HAS RECOGNIZED THAT THE PRESIDENT HAS
THE AUTHORITY TO DETAIN SUSPECTED TERRORISTS IN ORDER TO
PROTECT U.S. NATIONAL SECURITY INTERESTS
Col. James P. Terry (Ret.) (Chairman of the Board of Veterans Appeals, having previously served as Principal
Deputy Assistant Secretary and Deputy Assistant Secretary of State, and as Legal Counsel to the Chairman of the
Joint Chiefs of Staff), ARTICLE, ESSAY & NOTE: FEDERAL COURT OR MILITARY COMMISSION: THE LEGAL DILEMMA
POSED BY THOSE CHARGED WITH TERRORIST VIOLENCE, 60 Naval L. Rev. 125 (2010).

the President and Congress share responsibility for detainee

matters, the detention and prosecution of unlawful combatants rests solely with the
Executive. Early in the present conflict, the Congress passed Senate Joint Resolution ("SJR")
23, n38 which recognizes that "the President has authority under the
Constitution to take action to deter and prevent acts of international
terrorism against the United States." n39 Additionally, the resolution specifically
authorizes the President to use all necessary and appropriate force
against those nations, organizations, or persons[people] he determines
planned, authorized, committed, or aided the terrorist acts that occurred
on September 11, 2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the United
States by such nations, organizations or persons. n40 Thus, Congress in SJR 23 has specifically endorsed not only the use of
[*130] While

appropriate military force, but also the included authority to detain and try enemy combatants to prevent them from conducting
further hostilities against this nation. Under the provisions of the MCA, as amended in 2009, n41 the Secretary of Defense has
established regulations for the conduct of commission proceedings. The jurisdiction of any military commission is limited to a time of
war. Only offenses recognized under the law of war or designated by statute may be tried by military commission. The MCA further
provides that only aliens may be tried

INDEFINITELY DETAINING TERRORIST IS JUSTIFIED BECAUSE, IF RELEASED,

THE TERRORISTS WILL NOT BE DETERRED FROM COMMITTING TERRORIST
ACTS
Scheid, Don (2010).

Indefinite Detention of Megaterrorists in the War on Terror. Criminal Justice Ethics 29.1: p. 7

In saying a person is too dangerous to release, the implication is that, if released, he

will not be deterred from further crime by the threat of future punishment. This may
be because he is mentally out of touch with reality, or it may be that the person has
overwhelming urges he cannot control. In the case of megaterrorists, the individual
is undeterrable, presumably, because he is committed to carrying out terrorist
activities as a matter of firm, ideological conviction and/or religious beliefs. The
possibility of being captured and punished or losing his life does not deter him. In
fact, the prospect of becoming a martyr for his cause may actually be a positive
incentive, as it apparently is for some suicide bombers. Since the person is

undeterrable, his conduct cannot be controlled or significantly influenced by the

threat of future punishment. The states only realistic option, therefore, is
preventive detention.
NON-CITIZENS SHOULD BE GIVEN DUE PROCESS PROTECTIONS EXCEPT WHEN THEY
POSE THE RISK OF CATASTROPHIC HARM; THEN THEY SHOULD BE INDEFINITELY
DETAINED
Madeline Morris, Frances Eberhard, & Michael Watsula (2009). "After Guantanamo:
war, crime,
and detention." Harvard Law and Policy Review Online 3,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?
article=2630&context=faculty_scholarship&se
i
However, in those cases where terrorist activities threaten catastrophic harm, the
balance of risks
is shifted. Attacks threatening catastrophic harm exceed the scope of the risks that
the criminal
justice system is designed and equipped to handle. As discussed earlier, the
criminal law is
designed to reduce, but not entirely to prevent, the conduct that it proscribes. Here,
jus ad bellum
is the appropriate body of law to govern; catastrophic armed attack is precisely the
subject matter
for which the law of war was designed. The implications of this analysis for the
disposition of the
current detainees are, perhaps, counterintuitive. The detainees who pose the very
most serious
threat if released those who are, likely, also the most culpable detaineesshould
not be
among those prosecuted. For detainees whose release would pose a threat of
catastrophic harm,
the appropriate approach is detentionpursuant to the recognized right of states to
use force,
including detention, in self- defense against armed attack. The detention of persons
within this

group is a principled application of the law of war, and is prudent and responsible
policy. The
proper candidates for prosecution are those who, for standard criminal-justice
reasons, should be
subject to trial and punishment (even beyond their incarceration at Guantanamo),
but whose
acquittal would not pose a threat of catastrophic harm. If, within that group, there
are some who
cannot be prosecuted because the evidence against them has been tainted
through coercion, or
because their prosecution would require the disclosure of classified information that
cannot be
disclosed consistent with national securitythen those detainees may be released
rather than
prosecutedwithout engendering a threat of catastrophic harm. This is the kind of
choice that is
faced routinely by prosecutorsfor instance, in organized crime cases involving
classified
evidence. The policy indicated, then, is reliance on criminal prosecution for
counterterrorism
except in instances of terrorist activity posing a threat of catastrophic harm, for
which law-of-war
detention is warranted. In keeping with this policy conclusion, the proposed
Counterterrorism
Detention, Treatment, and Release Act provides authority to detain only
individuals engaging in
catastrophic armed attack against the United States. Each component of that
classification is
defined in Subchapter I of the Act.

CRIMINAL PROSECUTION WILL INCREASE TERRORISM

SK/N03.24) Paul Taylor [Chief Republican Counsel, Subcommittee on the

Constitution, Civil Rights & Civil Liberties, U.S. House Judiciary Committee], TEXAS
REVIEW OF LAW & POLITICS, Spring 2008, LexisNexis Academic, p. 252. Put
succinctly, where they are the sole or principal response to terrorism, trials in the

criminal justice system inevitably cause more terrorism: they leave too many
militants in place and they encourage the notion that the nation may be attacked
with relative impunity.

SK/N03.25) Michael Gerson, THE WASHINGTON POST, November 19, 2010, p. A23,
LexisNexis Academic. Civilian courts were not designed for high-profile enemy combatants such
as Mohammed, who would use a New York trial to embrace martyrdom and encourage violence.
4. INFORMATION RELEASE THREATENS PUBLIC SAFETY
SK/N05.06) Stephanie Cooper Blum [attorney, Dept. of Homeland Security], THOMAS
M. COOLEY LAW REVIEW, 2009, LexisNexis Academic, p. 82. Other concerns with trying
terrorist suspects in federal court include suspects obtaining access to classified or sensitive
material, leaks of such information to the public, and threats of physical harm to participants in
the trial, such as jurors, judges, and prosecutors.
INFORMATION RELEASE GIVES VALUABLE DATA TO TERRORISTS

SK/N05.04) Paul Taylor [Chief Republican Counsel, Subcommittee on the

Constitution, Civil Rights & Civil Liberties, U.S. House Judiciary Committee], TEXAS
REVIEW OF LAW & POLITICS, Spring 2008, LexisNexis Academic, p. 255.
Second, experience also tells us that providing classified or other sensitive
information to al-Qaeda members in federal court leads to breaches of security that
tip off the terrorists and thwart their capture. As Stuart Taylor Jr. has written:
Consider the list of almost 200 unindicted co-conspirators, including the thenobscure Osama bin Laden, that prosecutors in the 1995 trial of 11 subsequently
convicted Islamist terrorists were legally required to send to defense counsel. That
list was in downtown Khartoum within 10 days, U.S. District Judge Michael B.
Mukasey of Manhattan, who tried the case, recalled in a recent panel discussion.
And he [bin Laden] was aware within 10 days ... that the government was on his
trail.