What About Post-Conviction Detentions?

Minnesota’s Mohammed Abdullah Warsame has admitted to providing material support to al-Qaeda in the form of cash, military training and personnel. He visited al-Qaeda training camps in Afghanistan in 2000. And he kept in touch with old friends. “If you have any news or important information please let me know, because I don’t want to be late for the action, you know what I mean,” Warsame emailed other camp attendees that December. “We hear there might be an attack soon.” Warsame was indicted in 2004; pleaded guilty this March as part of a deal to drop additional charges of lying to FBI agents; and was sentenced today to 92 months in prison, along with three months of supervised release.

The first thing to say is that, somehow, the federal criminal justice system was capable of handling this terrorism case without detaining Warsame indefinitely. No extraordinary powers needed to be invoked. No standard of evidence needed to be reduced to secure a conviction and no baroque charges needed to be created to indict him. The competent and vigilant work of law enforcement was enough.

But there’s another question. 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 terrorist, it still retained the power to detain him after acquittal. Well, if so, what about post-conviction detentions? Warsame is a naturalized American citizen, but Johnson didn’t claim an exemption for U.S. citizens in his answer. Also, Warsame wasn’t captured on any battlefield, conventionally understood, but Johnson didn’t clarify that his perception of wartime detention authority was reserved for battlefield captures (or where the battlefield ends, for that matter). “If you have authority under the law of war to detain someone” under the Supreme Court’s *Hamdi *ruling, Johnson said, “that is true irrespective of what happens on the prosecution side.” Does the same hold for detentions after a prisoner serves his sentence?

Update: Adam Serwer reminds me that the Bush administration announced last year that Salim Hamdan — sentenced by a military commission to five and a half years — would again become an “enemy combatant” after his time is served. Obama eliminated the “enemy combatant” designation. What do Johnson and his Obama administration colleagues think of this?