There’s No Constituency for Post-Acquittal Detention

Ever since Pentagon General Counsel Jeh Johnson mused that the Obama administration had the power to detain people acquitted at trial of terrorism charges — and he didn’t distinguish between the limited detainee cohort currently at Guantanamo Bay and future terrorism captures, either — it’s been difficult to gauge whether the administration views that as a hypothetical situation or a practical strategy. If it’s the latter, reports Adam Serwer at The American Prospect, it’s going to run into a buzzsaw of opposition, even from those who advocate a harder detention line than the civil-libertarian community (mostly) prefers.

“As a legal matter, it is a non-outrageous statement,” says Ben Wittes, a self-identified centrist and legal expert with the Brookings Institution who has proposed a legal framework for preventive detention of suspected terrorists. “It is a very difficult political position to sustain however.” Ken Gude, a human rights and national security expert at the Center for American Progress, agrees. “Technically the government can continue to detain an individual after they’ve been acquitted in a military court, as a matter of law,” says Gude. “As a matter of policy, it’s a terrible decision.”

It doesn’t make any sense to say — as both Johnson and Assistant Attorney General David Kris did at Tuesday’s hearing — that the administration’s preferred method for adjudicating terrorism cases is prosecution in federal courts and also that any acquital could theoretically be met with a prompt detention. That’s a surefire way to destroy the credibility of the criminal justice system. Johnson, to be fair, was asked a politically difficult question: So, you guys gonna just let terrorists go after incompetent courts don’t convict ‘em? But he still waded the administration out into the perilous legal waters of endorsing show trials.