TheAgitator.com
Obama Administration Official Won’t Rule Out Post-Acquittal Detention
Tuesday, July 7th, 2009Defense 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.”
Dick Cheney is smiling.
Well, I guess he’s telling the truth with that whole “change” thing. I’m not sure that Bush went this far.
Louis XVI is smiling.
Glad to see those executive powers being pared back….
Joe Stalin is smiling.
You guys are really glass half-empty types, aren’t you? All they’re trying to do is ensure that the right to a trial is guaranteed. After all, if the verdict doesn’t matter at all to whether or not they are kept in custody, there’s no reason we can’t give every single detainee their day in court. Heck, we could even give them several, if they want.
I remember some of the spirited debates we had in 8th grade social studies class. They always seemed to pertain to the rights of citizens in other countries. What a difference 30 years has made!
I don’t think this is as big a deal as some are making it out to be. What they’re saying is that someone is being detained as a POW who is tried for criminal acts and acquitted of those acts is still a POW.
Now, you can question whether the POW status is proper to begin with, but if someone really is a POW then this is exactly the same as it has always been, e.g., a German POW in WWII, who was tried for war crimes during the war and acquitted would still be held as a POW after acquittal until the end of hostilities.
Put another way, the charges and acquittal are irrelevant to the justification for the detention (POW status), so the POW could still be held until the end of hostilities.
The best criminal law analogy I can come up with is this one: A defendant is being held on two charges. He is tried and acquitted of one of the charges, but the other charge is still pending. Even though he is acquitted (and assuming he can’t make bail), he will still be held on the second charge until it is disposed of.
@7
Technically you are exactly correct. But I think these trials go hand in hand with the very reason the person is being detained – that he is a terrorist.
The “war” we are in is the war on terror, so it’s questionable as to whether one can be a POW in that war, after being found not guilty of being a terrorist. Again, the vast majority of these people were not found on a battle field, and were not captured in battle, so the justification for their detention is one in the same with the issue at any possible trial.
It is also terrible policy to not release people who are acquitted in terms of national security and international legitimacy.
@7
I thought that these are detainees, not POWs. If they were POWs, the Geneva Convention would pertain to them.
However, since they aren’t really of any solid legal status, a non-conviction should be coupled with release. The fear is that they may never be released.
John Jenkins,
The problem is that this “war” is, by admission of many of our national leaders, indeterminate in length (and nature). Some have even used 10 years (and in one case, 100 years) as a ballpark estimate. This is essentially a life sentence without due process.
Mike Leatherwood,
To bolster your point, it’s not just a non-conviction – it’s a positive acquittal.
What about when our government wages war on domestic terrorists? Can they detain a US citizen and call that person a POW? Are they treated the same as foreign POW?
Oh, I ask all these questions, but I think we already know the answers.
I sure as hell ain’t.
“To bolster your point, it’s not just a non-conviction – it’s a positive acquittal.”
Those are the same. Any acquittal (in a U.S. criminal case) is because the state failed to prove each element of the charge beyond a reasonable doubt and does not speak to actual innocence (see, e.g., O.J. Simpson). It is not a positive affirmation of innocence (because the defendant is not required to prove his innocence). An exoneration is different, but criminal courts don’t deal in exonerations.
“What about when our government wages war on domestic terrorists? . . . Oh, I ask all these questions, but I think we already know the answers.”
You’re right, we do know the answer to that question. The Supreme Court answered it in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), with a plurality holding that the petitioner had to be afforded the right to challenge his detention. I would go further and adopt the Scalia position (petitioner must be criminally charged or Congress must suspend habeas relief).
“The problem is that this “war” is, by admission of many of our national leaders, indeterminate in length (and nature). Some have even used 10 years (and in one case, 100 years) as a ballpark estimate. This is essentially a life sentence without due process.”
But then the problem is with the “war,” not the fact that a POW can be held even after having been acquitted of crimes unrelated to his status as a POW.
This is not a novel position. Just because the people reporting on it think it is, does not make it so. Maybe it’s always been wrong, but breathless wonder at the reiteration of standard procedure going back hundreds of years is a tad much, isn’t it?
You people just don’t get it do you? We have not been a nation of rule of law for a long time. We are only a nation of rule of men. The only thing that keeps us in this state is the powers that be don’t fear for their own lives enough. It needs to be made plain to them that their lives will be held in the balance for their decisions.
Without that threat of “voting from the rooftops” these problems will only get worse.
As a corollary, where will all you bleeding hearts be when the government finally says “shut up” which is what they are on the verge of doing? You’ve already surrendered your birthright to self-defense (the 2nd amendment).
You who are modding John Jenkins down, please read what he’s saying and think about it first. He’s not taking an opposite stance, per se, just thinking this through.
We really have a mess on our hands, because we have a few terrorists that have been caught on the field of battle mixed with some innocents who were in the wrong place at the wrong time. The former should simply be killed, the latter sent back to their homes. The problem is that even those shown to be innocent are no longer welcomed home.
There’s no good answer to this, I surely don’t like what Obama’s done, but a lot of the opposition to this is really opposition to the various wars.
Like it or not, we’re stuck with this situation, and we have to deal with it.
I think Mattocracy’s point was that that this court ruling would be essentially meaningless, since all the government has to do is arbitrarily declare you a POW, whether you were captured at a training facility in Afghanistan or just rounded up off the street like this guy: http://www.nytimes.com/2009/07/06/nyregion/06detain.html?pagewanted=1&hp (links to death in immigration detention story from a few days ago).
There should be more “breathless wonder” at an executive branch that declares it’s right to completely brush aside SCOTUS rulings simply by making arbitrary declarations of who is a “combatant” and moreover, that operates in a permanant state of war so as to continue to ignore court rulings with end-run-around games like this. (Granted I know Bush started this never-ending war status, but I don’t see Obama making any changes in that area, except in the euphemisms).
The state has always claimed the right to lock you up for arbitrary reasons.
Also, a terrorism suspect getting not only a trial, but then convincing not 1 of 12 but 12 of 12 people who passed voir dire that despite the state spending millions of dollars on him he is not, in fact, a terrorist? Is there actually a case of this happening, or is this merely an academic question? Because frankly, that seems simply impossible.
Mr. Jenkins, I completely disagree. The charge they are acquitted of is the BASIS for them being detained. I.E., that they are terrorists or aided a terrorist organization. If they are acquitted of this charge, then under what basis can we even classify them as a POW?
This would be akin to us grabbing someone in France during WWII, detaining them as a POW because we thought they were a German soldier, and then deciding to keep him as a POW, even after it was shown that he wasn’t German or a soldier. How does is in accord with any established law of war?
I guess I do see where John Jenkins is coming from: the crux of the problem really is how we’ve declared an endless war on an amorphous “enemy” that is really an idea that can’t be defeated instead of country or declared-group of people that can. The whole thing should have been handled as a law enforcement/intelligence operation from the beginning.
Mr Jenkins,
I’ll say you’re right that this isn’t a new position for our government. So let’s say that it has always been wrong and move in that direction. As you said, the “War on Terror” is the root cause of all this.
But the fundamental problem of a government detaining someone forever is still an issue. Let’s say Obama ends the War on Terror in a week. Then what? Do we let these ‘terrorists’ go since the war is over? I just don’t see that happening. I also wonder, even if you can challenge your detention, what are the chances you’ll win and be released? doe
I’m not trying to gang up on you. That happens a lot here when someone doesn’t share in our riteous indignation. Just trying to keep it constructive.
@Ben: An acquittal implies criminal charges; the determination as to whether one is a combatant at all (in your analysis) is a different determination and if you are determined not to be a combatant, that is not an “acquittal,” but a status determination.
Let’s take your WWII example. Suppose we arrest that same person in France and he is both (a) suspected of being a German soldier; and (b) charged with rape. Before we determine whether he is a soldier, we try him on the rape charge and he is acquitted. We would still hold him pending a determination of whether he was a soldier, and if he is determined to be a solider we would hold him pending the end of hostilities.
An aquittal on criminal charges does not go to whether someone is a POW (or combatant), merely to whether he is guilty of the crime charged. If he is ONLY being held for the crime charged, and is acquitted, then he must be released. The only justifications for continued detention would be (a) additional charges; or (b) status as a combatant/prisoner. Note that he can still challenge his status as a combatant.
The situation you’re envisioning is where the only reason the person is being held is the charges themselves (remember, you can be held as a combatant and not charged with ANYTHING under the laws of war). That’s not the case that’s being referred to in the original article.
In the original article we have someone who is (a) charged with a crime; and (b) being held as a combatant independently of the charge. Once that person is acquitted of the crime, his detention as a combatant will continue until the end of hostilities unless he is adjudicated not to be a combatant, which is a separate process from the criminal trial. They are two separate determinations. (A person who is being held on charges and those charges are the entire basis of his being held is a run-of-the-mill criminal defendant, and that is a different analysis).
I certainly take issue with the classification of many combatants, but that is a wholly separate issue from continuing to hold a combatant who is acquitted of criminal charges.
@Mattocracy: I do not believe the position is wrong. When we take a prisoner in war, he is afforded certain protections, but under the laws of war we may hold him until the end of hostilities. This is preferable to the other likely outcome: simply killing prisoners rather than have them return to the battlefield.
Those same prisoners may also have committed crimes outside the laws of war (I used rape in my earlier example). When so charged, we can try an alleged criminal on those charges and he may be acquitted or convicted. In either case, he can still be held until the end of hostilities under the law of war (rather than executed).
This is the position being taken in the original article. Everyone wants to argue the merits of this particular war or that particular detention, and so they want to say that the original statement is wild and ridiculous, when it is the statement of (what I believe to be) the proper rule.
The issue is that the executive has greatly broadened who it classifies as combatants. THAT is the problem, not the rule that we can hold combatants pending the end of hostilities, even if they are acquitted of criminal charges (outside the laws of war). The focus should be on that mis-classification.
But John, they aren’t POWs, not legally, which was my point. So what protections are they afforded?
None.
No law to release them at the end of hostilities.
If they were POW’s, then I would 100% be with you…but they wouldn’t have gone to trial, either.
Mr. Jenkins,
That is totally not what I got out of that article, so if I got that wrong, I apologize and agree with you. However, I just reread it and still don’t see where you are getting that info. Nowhere in the article does it state that they are being charged with a crime other than the one that implicated them as a terrorist. That is what I assumed they were talking about
If they were redesignated as POWs they could also be legally shot without any trial. They were captured on the battlefield in civilian clothes and can be summarily executed as spies.
Not to nitpick, but on what basis are we considering these “detainees” to be prisoners of war? What war? Congress authorized the use of force, which has been used to justify everything from invasions to domestic wiretapping, but Congress, who holds the sole authority to declare war, did not issue a declaration of war. Yes, the president, and the media, have repeatedly called it a “War on Terror”, just as previous presidents have declared a War on Drugs and a War on Poverty and so on and so forth. Can we have indefinite detention in those rhetorical wars as well? If not, why not?
Just because someone, even–or perhaps especially–the president, says it, doesn’t make it so.
all in all, being a blank panther thug intimidating voters, or a wannabe Honduran despot, is a lot better gig under Obama than being a terrorist.
that is a wow! i would have guessed the first 2, but not the 3rd.
i’m sure glad we didn’t elect the other guy who opposed gitmo and torture, i’m sure that would have been reeeaaaaalyyy bad!
They are NOT POWs. They are Unlawful Enemy Combatants.
O wait, Obama got rid of that term.
So they ARE POWs.
No. Obama won’t call them that.
So I guess they don’t exist.
Problem solved.
18 makes a good point that this is likely all a moot point. The Obama administration is now cherry picking which cases will be tried by what methods, including no trials at all for some unlucky souls.
He has also made it rather clear that the process (trials, Military comissions, or no trials) will basically be chosen based on that detainee’s particular case. From this we can assume that any detainee who is actually tried (like in an open court iwth regular burdens of proof and rules of evidence) must have a very strong case opposing him, or he would have been afforded a more secretive, less burdensome process. In short, no one tried in open court will be acquitted because the cases againt them will be strong, and the juries predisposed to convict anyway.
As Glenn Greenwald pointed out a few weeks ago, this makes the trials really just show trials.
It was a hell of alot simpler an issue, before Obama got himself elected. This is pretty simple, but no one wants to accept responsibility for a descision.
One, they are all POWs. If this is the case then it is a violation of International law to sent them to trial, unless you can prove that they violated the Articles of War.
Two, they are criminals. If this is so then they need to be tried and if convicted, have their sentence carried out. Now for the kicker. If they are determined to be criminals are they to be tried for violations of US law or the Uniform Code of Military Justice? If they are to be tried under the UCMJ, see number ONE. If they are to be tried under US law and they are aquitted or if there isn’t enough evidence for a trial, they by all means, put them back where you found them.
Personally I say release the lot of them, on one condition. If they are ever again captured by US forces, they are to be executed on the spot.
How do we discover the misclassification without a trial? Some of the detainees we released were in no way terrorists. There doesn’t seem to be any recourse for classifying a suspect wrong when you can detain forever as long as the conflict persists. There seems to be no avenue for correction once false imprisonment occurs.
Maybe that’s the point…
I think it’s important to realize that the standard for criminal conviction is “proof beyond reasonable doubt”, while the standard for administrative detention is more like “preponderance of the evidence” [of course, in the latter case the evidence is only evaluated by the executive]. Moreover, the rules of evidence in a criminal court exclude considerable evidence that is relevant for decisions on administrative detention.
Since the US has a jury system, it has no such thing as “acquittal due to lack of guilt” which is separate from “acquittal due to reasonable doubt”. In other words, an acquittal in a court of law only says that, based on the evidence actually presentable in such a court, it is impossible to prove guilt beyond a reasonable doubt.
You may believe that the US should not detain captured terrorists unless it can prove their dangerousness beyond reasonable doubt using evidence the US is willing to publicly reveal. I myself am quite amenable to this view, considering the increasing tendency of the US government to slap the label “terrorist” on anyone they arrest independently of any evidence. Nevertheless, it is not inconsistent to believe that jury acquittal in a criminal trial is not a judgement on the propriety of administrative detention.
can’t we give them a fair trial and then a fair hanging?
The problem with the crime analogy is that these ‘trials” and acquittals are not for crimes, they are based upon Combat Status Reviews to be certain that people captured as soldiers are in fact soldiers. If someone is acquitted the court is essentially saying they are not waging war on the US, and cannot be treated as POWs. So the administration is effectively arguing that as part of the conduct of war the president has the right to lock up non-soldiers indefinitely.
I’m hoping Johnson was just confused and just mistaken about what an acquittal in a Hamdi hearing means, but I fear he isn’t. This is far worse than what Bush did, Bush was for detaining people without a judicial hearing to determine if they were subject to detention nder the rules of war Obama is advocating detaining people after a judicial hearing in which they determined not to holdable under the rules of war.
Have you figured out that the only difference between this administration and a lying sack of shit is the sack?
[Everyone go read Ackerman's post. He backs down after actually, you know, paying attention to exactly what was said]
@max: Johnson was not talking about a Hamdi hearing. The subject of the Armed Services Committee hearing was trying detainees for violations of the laws of war. A trial for violations of the laws of war is not a status (Hamdi) hearing.
Johnson did not say that someone who received a favorable status determination could be held indefinitely. He said that someone who is a detainee [presumably who has not contested his status or whose status hearing is pending] can still be held pursuant to the laws of war pending a favorable status determination.
I don’t know what bizarre planet I’m now living on that I am called to defend the Obama administration, but you folks are really grossly misinterpreting what was said.
Jenkins is correct. Bush did not invent “unlawful enemy combatants.” Laws re: pirates, partisans, and spies long predated Geneva and were largely incorporated in Geneva. Geneva sets forth a set of criteria to get the privileges of POW status, i.e., maintaining uniforms, chain of command, etc. These guys without uniforms, no chain of command, no respect for the law of war, and no connection to any national army have none of those characteristics. But people still want them to sit around the yard scheming like on Hogan’s Heroes.
Incidentally, the law of war applies without a declaration of war; it applies whenever military forces are used internationally.
So what to do? Immediately try them? Well, what if they’re not convicted; punitive criminal sanctions are more severe and possibly more permanent than detention for the length of hostilities and/or at the discretion of the CiC.
Release them en masse to show our great respect for the law of war? Well, this is all nice and good, until you find them attacking you again, which is happening right now in Helmadad Province, Afghanistan.
It’s likely true al Qaeda won’t be on the deck of the Nimitz any time soon like Hirohito in Japan. But that’s kind of not our fault or our problem, right? In the old days POWs might be paroled with instant death penalty if recaptured. But that’s among civilized nations. We have little reason to believe a great many of these guys won’t go back to fighting us. And if they won’t quit, then the same military purpose of detaining guys for a 3-5 year war applies: releasing them endangers your troops.
The law of war is reciprocal and reprisals are usually allowed in the case of flagrant violations. I believe under law of war we can kill the whole lot of these guys and should at our discretion.
Obama is right on this one.
[...] Hat tip: Radley Balko [...]
John Jenkins,
They are not the same. A trial can end with judgments other than conviction and acquittal – hung juries and mistrials to name two.
Also, I meant positive in the formulaic sense (i.e. not containing negation) rather than the guilty-innocent sense, but that’s neither here nor there.
Continuing to hold a defendant after a mistrial wouldn’t even be controversial, so your distinction makes no sense in context. Given that the original quoted matter mentions holding “detainees acquitted in courts,” your “bolstering” really isn’t, since the other side of the argument has already set one of the parameters as “acquitted,” not “mistried.”
A mistrial (a hung jury results in a mistrial on that count) is not a judgment on the merits, and it’s only a non-conviction in the broadest sense of the term because from the standpoint of the charges the mistrial “didn’t happen,” jeopardy doesn’t attach, and the prosecution must begin again if it wishes to maintain the prosecution (sometimes they don’t).
Let’s see, he’s pro-dictator in Honduras, he’s anti-fair elections in Iran, he’s exploded the budget far beyond anything Bush or McCain envisioned, and now he’s actually gone further than “Bushitler” ever did on the Gitmo detainees.
At what point is it OK to say “I told you so?”
(And of course, this one is going to have like -50 karma from the “libertarians” in the comments.)
John Jenkins,
Good points. I stand corrected.