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.
Think about that for a second, and how it might apply to someone like Salim Hamdan. After he was convicted by a military jury, Hamdan's attorneys argued for a sentence of less than five years. The government, however, asked the jury to sentence Hamdan to between 30 years to life. The jury agreed with the defense and sentenced Hamdan to serve 66 months, after he had already served 60. The Pentagon, after asserting that it had the ability to continue to detain Hamdan beyond the end of his sentence, transferred him to Yemen where he served the remainder of his sentence before being released last January.
Then, shortly after Salim Hamdan was released, Barack Obama, elected on a platform of "change," was sworn in as President. But what has changed? Glenn Greenwald accurately describes the Obama Administration's newly-announced "post acquittal detention" policy as "an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties." He goes on, accurately in my view, to describe the Obama administration's stance as even worse than Bush's:
In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That's clearly the Obama view as well, but he's creating an elaborate, multi-layered, and purely discretionary "justice system" that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded.
In short, that's not change we can believe in, that's even worse than more of the same.