So much for change and the pre- Bush rule of law. A Defense Department attorney now states that even if detainees are found not guilty, they can still be imprisoned indefinably. So that is our new system, if your found guilty, you are to be kept in prison, but if you are found not guilty you are kept in prison. How can that possibly be troubling?
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.”
And people wonder why Obama’s approval ratings are going down (but still remain at a relatively robust 56%). The American people cast a ballot in November for change, but not change in this direction in terms of the government and not the courts or judiciary being the arbiters of who is guilty and who is not in the form of sole judge, jury, and detainer.