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 t 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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