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.”

–

You can follow TWI on Twitter and Facebook.

Well, as much as civil liberties advocates might prefer that the new administration choose not to do that, Kagan could hardly have disputed that the United States has that right.  After all, the Supreme Court ruled that it does, in the landmark case Hamdi v. Rumsfeld.

In that case, relatives of Hamdi — a U.S. citizen who allegedly took up with the Taliban in Afghanistan — filed a habeas corpus petition challenging the U.S. government’s right to hold him indefinitely. But the Supreme Court’s response was clear:

The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

The AUMF is the “Authorization for Use of Military Force” that Congress passed a week after September 11, which gave the president the power to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

That’s pretty broad.  And in Hamdi, the high court ruled that pursuant to the laws of war, the United States may detain those people “for the duration of these hostilities.”  It added, however, that those detainees have the right to meaningfully challenge their designation as an enemy combatant before an impartial adjudicator.

For now, that pretty much answers the legal question of detention.

Of course, Congress could amend that law, or President Obama could declare that hostilities are over, which would foreclose the government’s ability to pick up suspects around the world and imprison them indefinitely. But given Obama’s stated intentions to beef up U.S. forces in Afghanistan rather than withdraw them, he’s not likely to declare that war over anytime soon.

For better or worse, then, Elena Kagan solicitor general will have little say over the matter.  (Unless, of course, she ends up on the Supreme Court one day.)