Saturday, May 18th, 2013

Johnson Opens the Door to Post-Acquittal Detentions

By Spencer Ackerman
Tuesday, July 07, 2009 at 11:37 am

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.]

Oh, and Johnson also suggested that the U.S. detention facility at Guantanamo Bay might remain open after January 2010, since “you can’t prosecute some significant subset of 220 people before January.” He said the administration will continue to detain some of those Guantanamo detainees, “whether at Guantanamo or somewhere else.”

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Comments

38 Comments

The Agitator » Blog Archive » Obama Administration Official Won’t Rule Out Post-Acquittal Detention
Pingback posted July 7, 2009 @ 11:59 am

[...] Wow. [...]

Obama administration claims power to detain post-acquittal | blog of bile
Pingback posted July 7, 2009 @ 3:02 pm

[...] http://washingtonindependent.com/… 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.” [...]

sgwhiteinfla
Comment posted July 7, 2009 @ 3:45 pm

But you can MOVE significant subset of 220 people before January. What the eff?!

Politicscorner
Comment posted July 7, 2009 @ 6:49 pm

These claims of executive power are just outrageious. If they've had there day in court and have been acquitted, let these people go.

Name
Comment posted July 7, 2009 @ 8:56 pm

Surely President Obama hast to create some discipline in his administration so that comments by lower-level officials do not constantly make him appear to be duplicitous.

Blagnet.net » Obama Defense Dept. advocates post-acquittal detentions
Pingback posted July 7, 2009 @ 11:06 pm

[...] We’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.” [...]

dhinds
Comment posted July 7, 2009 @ 11:10 pm

Who then, is the real enemy?

visibility911.com » Blog Archive » Obama White House: Acquitted Detainees May Not Be Released
Pingback posted July 8, 2009 @ 4:43 am

[...] Ackerman at The Washington Independent characterized Johnson’s response as moving the Obama administration “into new territory from a civil [...]

DhafirTrial » The Obama justice system
Pingback posted July 8, 2009 @ 11:42 am

[...] attended a Senate hearing at which the DOD’s General Counsel, Jeh Johnson, testified. As Ackerman highlighted, Johnson actually said that even for those detainees to whom the Obama administration deigns to [...]

WSJ: "Detainees, Even if Acquitted, Might Not Go Free [under Obama Administration]" - FlyerTalk Forums
Pingback posted July 8, 2009 @ 11:48 am

[...] prosecution by military commission aims to punish them for war crimes committed in the past. Spencer Ackerman has more: [...]

The Obama justice system
Pingback posted July 8, 2009 @ 5:09 pm

davecreswell
Comment posted July 8, 2009 @ 4:10 pm

Clearly the Obama administration is the real enemy, if basic human freedom is the subject under discussion.

The Progressive Mind » OpEdNews » Glenn Greenwald: The Obama Justice System
Pingback posted July 8, 2009 @ 7:10 pm

taochiapet
Comment posted July 8, 2009 @ 6:19 pm

would that be to hide the duplicituousness, or to do away with it?

Archie1954
Comment posted July 8, 2009 @ 7:24 pm

A detainee may be kept incarcerated indefinitely even after a court has found him not guilty of any crime. That smacks of dictatorship not democracy. If this is the result of 911 then the terrorists have won. They need do nothing more they have already destroyed America.

attriti0n
Comment posted July 8, 2009 @ 10:12 pm

“moved the Obama administration into new territory from a civil liberties perspective.”

Anyone recall when the Bush administration declared themselves above the law that they received a response this soft? No, me either.
He's just so black. People say he's only half-black but surely that cannot be the case. How could a half-black man achieve this. Nixon could have been 7/8ths Cherokee and not gotten away with shit like this.

He truely is a historic president. After all, if it was any of the previous ones, reporters like you would probably have the balls to type the words “show trials”. Clearly though he could put this shit on prime-time with text message voting and it would merely rise to the level of “new ground”.

Drasties - Dutch on the World - World on the Dutch
Pingback posted July 9, 2009 @ 2:52 am

The Obama justice system: By Glenn Greenwald - The Largest Minority
Pingback posted July 9, 2009 @ 5:28 am

Detainees, Liberals and the Powers That Be « Blue Lyon
Pingback posted July 9, 2009 @ 10:36 am

[...] Liberals and the Powers That Be Jonathan Turley on the Obama administration’s newest claim that he has the right to imprison detainees even after they have been acquitted in a court of [...]

"Presidential Post-Acquittal Detention Power" | Hillary Clinton
Pingback posted July 9, 2009 @ 10:45 am

[...] reporting from yesterday’s Senate Armed Services Committee hearing on military commissions, has the details: Johnson said that “as a matter of legal authority,” the administration’s powers [...]

Obama’s Love of Indefinite Detention « Lean Left
Pingback posted July 9, 2009 @ 12:40 pm

[...] No: 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.” [...]

Glenn Greenwald: The Obama Justice System | The Head On Radio Network
Pingback posted July 9, 2009 @ 6:25 pm

The Obama Justice System — will to truth
Pingback posted July 9, 2009 @ 9:50 pm

What About Post-Conviction Detentions? | The Lie Politic
Pingback posted July 10, 2009 @ 5:27 am

[...] Why bother with the supervised release? On Tuesday, Defense Department General Counsel Jeh Johnson told Sen. Mel Martinez (R-Fla.) that under the laws of war, if the government couldn’t convict a [...]

Off Topic: Glenn Greenwald on the Obama Betrayal « The Heat Death Hour
Pingback posted July 27, 2009 @ 9:52 pm

Is The Obama Administration Insane Or Just Mind Numbingly Stupid? « Eat It Or Wear It
Pingback posted November 14, 2009 @ 1:32 pm

[...] what? The Obama administration has already hinted that Khalid Sheikh Mohammed will never go free, even if aqitted. So what’s the point of conducting a sham civilian show trial where the outcome is already [...]

The Red Team’s Spin on The Christmas Bomber | Think Tank West
Pingback posted February 22, 2010 @ 5:59 pm

[...] close to the Pentagon!). And since the Obama Team continues to use military tribunals, and reserves the right to imprison KSM indefinitely in the unlikely event he’s acquitted, it’s pretty hard to [...]

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Pingback posted December 15, 2010 @ 2:57 am

[...] Senate hearing at which the DOD’s General Counsel, Jeh Johnson, testified. As Ackerman highlighted, Johnson actually said that even for those detainees to whom the Obama administration deigns to [...]

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