Obama Official Claims Post-Acquittal Right to Detain

I suppose I have to get used to maintaining a nothing-surprises-me attitude toward the Obama administration when it comes to anything related to civil liberties or human rights — just as I had to during the previous administration.

Spencer Ackerman has the latest example of that truth:

Defense Department General Counsel Jeh Johnson moved the Obama administration into new territory from a civil liberties perspective. Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, Johnson said that “as a matter of legal authority,” the administration’s powers to detain someone under the law of war don’t expire for a detainee after he’s acquitted in court. “If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”

Martinez looked surprised. “So the prosecution is moot?” he asked.

“No, no, not in my judgment,” Johnson said. But the scenario he outlined strongly suggested it is. If an administration review panel “determines this person is a security threat” and “for some reason is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone” under “law of war authority” as granted by the September 2001 Authorization to Use Military Force, Johnson said. And beyond that source of authority “we have the authority in the first place.” I’m no lawyer, but that sounds a lot like Johnson is claiming inherent presidential authority from the Constitution to detain someone after he’s been acquitted in court if the president believes that person to be a security threat. [Update: I think I’m wrong about that. Johnson is claiming authority from the law-of-war construct for such detentions, and that doesn’t stem from any constitutional interpretation of inherent power. Apologies.]

Maybe I’m missing something, but that sounds like a distinction without a difference. What difference does it make if authority to detain someone indefinitely comes from the traditional “law-of-war construct” or the more recent Cheney/Addington claim that the chief executive has an inherent constitutional right of unlimited power, if it works out to the same thing? We’re not talking here about any kind of war that has an end point, like any other war in human history.  So what difference does it make if it’s the “law-of-war construct” or the “inherent constitutional right” interpretation?

Via Memeorandum.

3 Responses to “Obama Official Claims Post-Acquittal Right to Detain”

  1. Chief says:

    I understand that sometimes a person who is guilty of a crime, is found innocent for any number of reasons.

    Somebody, a long time ago, said that it is better that ten guilty parties be set free than for one innocent person to be wrongly convicted.

    If a jury of 12 cannot convict, set them free.

  2. Jack Jodell says:

    The founding fathers (with the exception of, maybe, John Adams) are spinning in their graves. The Obama administration has been a MAJOR disappointment on this issue. This is a very dangerous reinforcement of a horrible precedent set by Bush II. It is inexcusable.

  3. Bob Della Valle says:

    I thought that Obama’s claim to preventative detention without trial was beyond the pale, but, now he claims the right to preventative detention after acquital – that takes the cake. I wonder what constitution he taught at U of Chicago.

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