Indefinite Detention With or Without Trial

On Tuesday the Senate Armed Services Committee held a hearing about the legal treatment of terrorism suspects. The New York Times account emphasizes that Obama administration officials faced resistance from Sen. John McCain (R-Ariz.) and other Republicans on the committee to the idea that people accused of ties to terrorism have a constitutional right to (some sort of) due process. Yet in an exchange with Sen. Mel Martinez (R-Fla.), Defense Department General Counsel Jeh Johnson said the president reserves the right to ignore the outcome of that process (emphasis added):

Martinez: If we are doing Article III [civilian] trials…we then also are talking about closing Guantanamo by the end of the year. There's no way for 220-some-odd people to be prosecuted through some proceeding, whether Article III or military commissions, in that time frame. So where will they then be? I guess they'll be here. And what about those who are acquitted? Where do they go? What happens to them?

Johnson: You're correct. You can't prosecute some significant subset of 229 people before January. So those that we think are prosecutable and should be detained, we will continue to detain, whether it's at Guantanamo or someplace else. The question of what happens if there's an acquittal…I think that as a matter of legal authority, if you have the authority under the laws of war to detain someone…it is true irrespective of what happens on the prosecution side.

Martinez: So therefore the prosecution becomes a moot point?

Johnson: Oh no, I'm not saying that at all. You raised the issue of what happens if there's an acquittal, and in my judgment, as a matter of legal authority…if a review panel has determined this person is a security threat…and should not be released, if for some reason he is not convicted for a lengthy prison sentence, then as a matter of legal authority I think it's our view that we would have the ability to detain him.

So the Obama administration is all for due process, as long as it produces the correct result. Obama already has said that Guantanamo detainees who cannot be successfully tried by military commissions or civilian courts can still be imprisoned indefinitely if they are considered too dangerous to release. Now Johnson is saying that even those who are prosecuted can be kept imprisoned regardless of the verdict. The only point of prosecuting them, it seems, is to create an impression of due process while continuing the Bush detention policies that Obama condemned during the campaign.   

At this hearing and elsewhere, Obama administration officials have expressed a preference for trying terrorism suspects, especially those arrested in the United States, in civilian courts. But in their view that decision is completely at the president's discretion, so in practice the new policy may be indistinguishable from the old policy, under which the Bush administration sometimes kept terrorism suspects in military custody and sometimes in civilian custody, sometimes prosecuted them in military tribunals and sometimes in civilian courts. Also like Bush, Obama is claiming the authority to continue imprisoning defendants who have been acquitted.

Obama may even be retreating on his promise to close Guantanamo by January, his most dramatic departure from Bush's detention policies. Note that Johnson said "we will continue to detain" prisoners who can't be prosecuted by January, "whether it's at Guantanamo or someplace else."

Although missing the deadline would be important symbolically, the location of imprisonment has always been less important than its justification, especially since the Obama administration is laying the groundwork for treating anyone suspected of ties to terrorism, no matter where he is arrested/captured or what his nationality is, as an enemy combatant subject to indefinite detention, whether or not he gets a trial and even if he is acquitted.

You can view Johnson's exchange with Martinez here. Glenn Greenwald has more here. In January I argued that the policy of indefinite detention symbolized by Guantanamo was more important than the prison itself. In February I noted that Obama planned to continue that policy. In May I analyzed his use of martial rhetoric to justify it.