Obama Defense Dept. advocates post-acquittal detentions
July 7, 2009 – 11:06 pm by JohnWe’ll see if this actually happens:
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.”
Yes, you read that right: If a “terrorist” suspect is acquitted in a United States court, the Obama DOD will consider detaining that person indefinitely anyway.
Hat tip: Radley Balko
2 Responses to “Obama Defense Dept. advocates post-acquittal detentions”
Go read the original post by Ackerman. That is not what Johnson said. What he said was that an enemy combatant (being held under the laws of war, not in pre-trial detention) can continue to be held under the laws of war after acquittal on criminal charges. Being an enemy combatant is not a crime, but it does subject you to detention for the duration of hostilities. The acquittal on criminal charges does not affect one’s status as a detainee. That’s the principle that Johnson is articulating and it is the correct one. Read the comment’s to Radley’s post if you want to see it hashed out in gory detail.
The status (Hamdi) hearing is completely different and separate from any criminal trial. Just read the last full sentence you quoted there and you’ll see that.
By John Jenkins on Jul 8, 2009
I read the original post and understood it, which I guess makes one of us. Perhaps you misunderstood my point. I am not interested in what is legal; I am interested in what is right. I am also interested in comparing the official policies and the actions of the Obama administration that increase the State’s power over individuals to the policies and actions of the Bush administration that did the same. Clearly the goals and probably the results will end up being the same.
I do not recognize the supremacy of the “laws of war” over the rulings of criminal courts or the law of the Constitution, and I sure as hell don’t think those are superior to natural law. Perhaps if the Obama administration stuck more closely to the laws of war, they would at least have a stronger argument (which I still wouldn’t listen to.) The Supreme Court has a long and dirty track record of support for increases in government power, and its rulings are completely unrelated to and, in fact, removed from any consideration of right vs. wrong.
The point Radley and I were making, if you can temporarily detach yourself from the details of the Hamdi ruling or whatever other rulings concern you, was that the Defense Department would like to use this ruling relating to “laws of war” to excuse its detention of people it has labeled as “terrorists” despite the absence of any danger those people pose to the public or to the State. It hasn’t happened yet and I hope it doesn’t, but like any other government, it would use the rulings it likes in the way that it likes to increase its power over its subjects.
“Being an enemy combatant is not a crime, but it does subject you to detention for the duration of hostilities.”
Whether you are an enemy combatant and how long the hostilities last are defined solely by the Obama administration. If you can’t see there is a problem with that, you are hopeless.
“The status (Hamdi) hearing is completely different and separate from any criminal trial. Just read the last full sentence you quoted there and you’ll see that.”
Yes, that was Jeh Johnson’s point, which I don’t give a big, fat, flying fuck about. It is illegitimate for an illegitimate government to hold a non-violent person on illegitimate charges relating to crimes he probably hasn’t even committed and has, in fact, been found guilty of.
When the Obama administration pardons someone who was convicted in a court of law because some other authority, different and separate from any criminal trial (say, a moral consideration of right vs. wrong) should supersede the court’s ruling, then…well, I’ll be shocked. It will use every ruling it can to expand its power and wage its war on terrorism at home, and there are plenty of those rulings to go around.
By John on Jul 8, 2009